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LAW   BOOK  SEl.      '^ 

210  DOUGLAS  - 

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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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I 


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Of  elfmentarr  treatises  on  all  the  principal  subjects  of  the  law.     The 
special  features  of  these  books  are  as  follows: 

1.  A  succinct  statement  of  leading  principles   in  blacklet- 

ter  type. 

2.  A    mare    extended    commentary,    elucidating    tlie    princi- 

ples. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75    per   volume,    including   delivery. 

Bound  In  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Chirk  on  Criminal  Law.     (2(1  Ed.) 

3.  Sliii'Uian  on  Couniiou-Law  Pleading.     (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

5.  Black  on  Constitutional  Law.     (3d  Ed.) 

6.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

8.  Tiffany  on  Sales.     (2d  Ed.) 

9.  (.Jleun  on  International  Law. 

10.  Japgard  on  Torts.     (2  vols.) 

11.  I'.lack  on  Interpretation  of  Laws.     (2d  Ed.) 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith  on  Elementary  Law. 

14.  Ilale  on  Damages. 

15.  Hopkins  on  Real  Property. 

16.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations.     (2d  Ed.) 

18.  Cniswell  on  Executors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  Oeorpe  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  P.arrows  on  Negligence. 

24.  Hughes  on  Admiralty. 
2r>.  Eatfin  on  Equity. 

2fi.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on   Wills. 

28.  Vance  on  Insurance. 

20.  Ingersnll  on  Public  Corporations. 

30.  Hughfs  on  Federal  .Turisdiction  and  Procedure. 

31.  Chi  Ids  on  Suretyship  and  Guaranty. 

32.  fV.stlgan  on  .\nierican  Mining  Law. 

33.  Wilson  on  International  Law. 

34.  Ollnioro  on  Partnership. 

3,'i.  Black  on  Law  of  Judicial  Precedents. 

Id  preparation:     Handbooks  of  the  law  on  other  subjects  to  be  an- 
nounced later. 

Published    and    for    sale    by 

WEST  PUBLISHING  CO.,   ST.  PAUL,  MINN. 


HAND-BOOK 


ON    THE 


LAW  OF  BAILMENTS  AND  CARRIERS 


BY 
WILLIAM  B.  HALE,  LL.  B. 


ST.   PAUL,    MINN. 
WEST  PUBLISHING  CO. 

i8g6 


Copyright,  1896, 

BY 

WEST  PUBLISHING  COMPANY. 


T 
1294. 


vS 

h 


To 
A.  B.  Db  F. 

To  whose  love  and  wise  cooosel 
I  am  deeply  indebted. 

(iii)* 


L(>1^t~l 


PREFACE. 


This  book  is  an  attempt  to  present  a  clear  and  accurate  statement 
of  the  law  of  bailments  in  such,  a  form  that  its  principles  may  be 
most  readily  grasped  and  retained.  All  the  principles  have  been 
carefully  and  exhaustively  stated,  illustrated,  and  explained.  No 
question  has  been  "written  through."  Each  has  been  squarely  met, 
and  where  the  decisions  fail  to  furnish  a  satisfactory  answer  the  au- 
thor has  not  hesitated  to  state  his  own  views.  Great  pains  hare 
been  taken  to  use  terms  with  consistency  and  precision,  and  to  avoid 
the  loose  use  of  language,  so  fatal  to  any  scientific,  or  even  intelligi- 
ble, treatment  of  any  subject.  At  all  times  the  author  has  kept  in 
close  touch  with  the  decisions.  He  has  had  the  leading  cases  on 
the  subject  before  him  while  writing  each  section,  and  the  law  will 
frequently  be  found  stated  in  the  very  language  of  the  decisions. 
The  citation  of  authorities,  however,  has  not  been  confined  to  what 
are  known  as  'leading  cases";  on  the  contrary,  the  effort  has  been 
to  make  the  citation  of  cases  reasonably  exhaustive  and  up  to  date, 
so  that  the  lawyer  or  student  may  have  the  benefit  of  cases  from 
his  own  state  upon  the  questions  involved. 

To  the  eminent  labors  of  Judge  Story  all  subsequent  writers  on 
bailments  are  deeply  indebted,  and  the  writer  acknowledges  his  in 
debtedness,  especially  in  the  branch  of  civil  and  foreign  law. 

To  facilitate  reference  to  any  desired  point,  section  numbers  have 
been  introduced  at  the  top  of  the  page,  and  in  the  black-letter  para- 
graphs specific  references  have  been  given  to  the  pages  where  each 
particular  proposition  is  discussed.  In  this  manner  the  entire  book 
is  practically  cross-referenced,  and  the  accessibility  of  its  contents 
greatly  increased. 

In  conclusion  the  author  wishes  to  acknowledge  much  valuable 
assistance  from  Mr.  Earl  P.  Hopkins,  especially  in  the  chapter  on 
"Pledges."  W.  B.  H. 

St.  Paul,  April  5,  189d. 

LAW  BAILiS.  (T)* 


TABLE  OF   CONTENTS. 


CHAPTER  L 

IN  GENERAL. 

Seotioa  Page 

1.  Definition    l-'J 

2.  General  Principles  Common  to  All  Bailments 10-35 

(a)  Subject  must  be  Personalty. 

(b)  Delivery. 

(c)  Acceptance  by  Bailee. 

(d)  Competency  of  Parties. 

(e)  l^tle  of  Bailor. 

(f)  Right  of  Property  in  Bailor— Right  to  Sue. 

(g)  Bailee  Estopped  to  Dispute  Bailor's  Title, 
(h)  Exposing  Bailee  to  Danger. 

(i)    Care  to  be  Exercised  by  Bailee. 

(j)    Liability  under  Special  Contract 

(k)    Bailee  must  Act  In  Good  Faith. 

(1)    Redelivery. 

S.    Roman  Classification 85 

4           Depositum    85 

5.  Mandatum    S.j 

6.  Commodatum    80 

7.  Mutuum    3G 

8.  Pignus 3t; 

9.  Locatio    36-31 

10.    Classification  with  Reference  to  Benefit 87 


CHAPTER  TL. 

BAILMENTS  FOR  SOLE  BENEFIT  OF  BAILOR. 

11.    Depositum    and    Mandatum 38-42 

12-13.    Establishment  of  Relation 42-49 

LAW  BAILU.  (vii) 


▼Ill 


TABLE    OF    CONTENTS. 


8«cUon 
14. 


15. 

10-17. 


Rights  and  Liabilities  of  Parties 

(a)  Bailor  must  Indemnify  Bailee  against  Expense. 

(b)  Bailee  may  Bind  Bailor  by  Contract, 

(c)  Damage  Sustained  in  Executing  Bailment 

(d)  Liability  for  Misfeasance  and  Nonfeasance. 

(e)  Right  of  Bailee  to  Use  Property. 

(f)  Special  Property  of  Bailee— Right  of  Action. 

(g)  Liability  for  Negligence. 

Termination  of  Bailment 

Redelivery   


Page 
60-73 


73-78 
78-80 


18-19. 

20. 
2L 


22. 
23. 


CHAPTER  m. 

BAILMENTS  FOR  THE  BAILEES  SOLE  BENEFIT. 

Commodatum  81-83 

Establishment  of  Relation 83-86 

Rights  and  Liabilities  of  Parties 8&-y5 

(a)  Ordinary  and  Extraordinai-y  Expenses. 

(b)  Liability  of  Lender  for  Defects. 

(c)  Fraud  in  Procuring  Loan. 

(d)  Right  to  Use. 

(e)  Right  of  Action  against  Third  Persons. 

(f)  Liability   for   Negligence. 

Termination   of  Loan 95-97 

Redelivery   98-100 


CHAPTER  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT— PLEDGE. 

24.  In  General  101-102 

25.  Pledge   Defined 102-109 

26.  Establishment  of  Relation 109-113 

27-29.  Title   of    Pledgor 113-118 

30.  What  may  be  Pledged 118-120 

31-32.  Delivery   121-128 

33.    Rights  and  Liabilities— Of  Pledgor 128-133 

(a)  Implied  Warranty  of  Title. 

(b)  Interest  Assignable. 

(c)  Interest  Subject  to  Judicial  Sale. 

(d)  Right  to  Sue  Third  Persons. 

(e)  Right  to  Redeem. 


Section 


TABLE    OF    CONTENTS.  ix 


Page 


34.  Rights  and  Llahilities— Of  Pledgee  before  Default 13S-1G2 

(a)  Interest  Assignable. 

(b)  Title  Acquired  by  Pledgee. 

(c)  Special  Property  of  Pledgee. 

(d)  Right  to  Use  the  Pledge. 

(e)  Profits  of  the  Pledge. 

(f)  Expenses  of  the  Pledge, 
(g)  Care  Required  by  the  Pledgee, 
(h)  Redelivery  of  the  Pledge. 

35.  Of  Pledgee  after  Default 162-170 

(a)  Suit  on  the  Pledge  Debt. 

(b)  Sale  of  Pledged  Property. 

86.    Termination   of   Pledge 170-17G 


CHAPTER  V. 

BAILMENTS  FOR  MUTUAL  BENEFIT— HIRING. 

37.    Locatio,  or  Hiring 177-179 

3&-39.    Establishment  of  Relation 179-184 

40.  Rights  and  Liabilities  of  Parties 184 

41.  Locatio  Rei,  or  Hire  of  Things  for  Use l&i-21l 

(a)  Right  to  Use. 

(b)  Special  Property  of  Bailee— Right  of  Action. 

(c)  When  Bailee  has  Assignable  Interest. 

(d)  Warranty  of  Title  and  Right  of  Possession. 

(e)  Bailor  must  Warn  Bailee  of  Defects. 

(f)  Liability  to  Third  Persons  for  Negligence. 

(g)  Incidental  and  Extraordinary  Expenses, 
(h)  Liability  to  Bailor  for  Negligence. 

(i)    Liability  for  Acts  of  Servants,  etc 
(j)    Redelivery, 
(k)    Compensation. 
42-44.  Locatio  Operis,  or  Hire  of  Labor  and  Services 212-238 

(a)  Special   Property   of   Bailee— Right   of   Action— 

Insurable  Interest. 

(b)  Compensation. 

(c)  Expense  of  Executing  Bailment 

(d)  Lien. 

(e)  Title  to  Materials  Used  in  Repairing. 

(f)  Liability  to  Bailor  for  Negligence. 


TABLE    OF    CONTENTS. 
Boctlon  '**^* 

45.  Rights  and  Liabilities— Specific  Bailments  Considered 238-252 

(a)  Warehousemen. 

(b)  Forwarding  Merctiants. 

(c)  Wharfingers. 

(d)  Safe-Deposit  Companies. 

(e)  Agisters. 

(f)  Factors  and  other  Bailiffs. 

46.  Termination  of  Relation 252-253 

47.  Redelivery   253 


CHAPTER  VL 

INNKEEPERS. 

48.  Innkeeper  Defined 254-265 

49.  Who  are  Guests 265-271 

50.  Special   Agreement 271-273 

51.  Commencement  of  Relation 273-274 

52.  Rights  and  Liabilities  of  Innkeepers 274 

53.  Duty  to  Receive  Guests 274-277 

54.  Liability  for  Guests'  Goods 277-284 

55.  For  What  Property  Liable 284-289 

56.  Limited  Liability 289-293 

57.  Innkeeper's  Lien  293-295 

58.  Waiver    295-296 

59.  Enforcement    296-297 

60-61.    Termination  of  Relation 297-299 

62.    Innkeepers  as  Ordinary  Bailees 299-300 


CHAPTER  VII. 

CARRIERS   OF   GOODS. 

63-64.    Private  Carriers  301-303 

<i5.    Common  Carriers   304 

GG.  Essential  Characteristics 304-314 

67-68.  When  Liability  Attaches 314-^20 

<>9.  Rights  and  Liabilities 321 

70-75.  Duty  to  Carry  for  All 321-327 

76.  Duty  to  Furnish  Equal  Facilities  to  All 327-330 

"77.  Right  to   Compensation 331-335 

"8.  DiscriminaCon 335-341 

^^-  Lien    342-350 


TABLE    OF    CONTENTS. 


XI 


Section  Pago 

80.    Rights  and  Liabilities— Liability  for  Loss  or  Daraape '^'>l 

81-82.  As  Insurers    351-369 

S3.  Carriers  of  Live  Stock 370-377 

84.  Carriers   of    Baggaye 377-401 

85.  As    Ordlnai-y    Bailees 401^07 

86-87.  Liability  for  Delay 408-412 

88.  Special  Property  of  Carrier— Right  of  Action 412-413 

89.  •       Special    Contract 413 

90-91.  Contracts   Limiting  Liability 413-437 

92-94.  Notices  Limiting  Liability 437^47 

95.  Termination  of  Liability  as  Common  Carrier 447^48 

96.  Delivery    to   Consignee 448-463 

97.  Delivery  to  Connecting  Can-ier 463-477 

98.  Excuses  for  Nondelivery 477-482 

99-100.    Post-Office  Department. 483^88 


CHAPTER  Vm. 


CARRIERS  OP  PASSENGERS. 


101.    Who  are  Carriers  of  Passengers 489-493 

102-103.    Who  are   Passengers 493-498 

104.  When  Liability  Attaches 499-501 

105.  Rights   and   Liabilities 502 

106.  Duty  to  Accept  Passengers 502-505 

107.  Duty  to  Furnish  Equal  Accommodations 505-507 

108.  Right  to  Compensation 507-510 

109.  Ticket  as  Evidence  of  Passenger's  Rights 510-514 

110.  Right  to  Make  Regulations 514-515 

111.  Liability    for    Delay 510-517 

112-113.  Injuries  to  Passengers 517-529 

114.  Contracts  Limiting  Liability 529-531 

115.  Termination    532 

116-118.  Ejection  from  Vehicle 533-537 

119.  Alighting  at  Station 537-530 

120.  Connecting    Carriers 539-541 


Xll  TABLE   OF   CONTENTS. 


CHAPTER  IX. 

ACTIONS  AGAINST  CARRIERS. 

Section  Page 

IJl.    In  General &i2 

122.    Actions  against  Carriers  of  Goods 542 

123-126.          The  Parties 542-551 

127-128.          Form  of  Action 551-554 

129.  The  Pleadings    554 

130.  The  Evidence  555 

131-137.  The  Damages  556-559 

138.    Actions  against  Carriers  of  Passengers 560-567 


t 


HAND-BOOK 


ON    THE 


LAW  OF  BAILMENTS. 


CHAPTER  I. 

IN  GENERAL. 


1.  Definition. 

2.  General  Principles  Common  to  All  Bailments. 

(a)  Subject  must  be  Personalty. 

(b)  Delivery. 

(c)  Acceptance  by  Bailee. 

(d)  Competency  of  I'arties. 

(e)  Title  of  Bailor. 

(f)  Right  of  Property  in  Bailor— Right  to  Sue. 

(g)  Bailee  Estopped  to  Dispute  Bailor's  Title, 
(h)    Exposing  Bailee  to  Danger. 

(i)    Care  to  be  Exercised  by  Bailee. 

(j)    Liability  under  Special  Contract, 

(k)    Bailee  must  Act  in  Good  Faith. 

(1)    Redelivery. 
8.    Roman  Classiflcatlon. 
4.  Depositum. 

6.  Mandatum. 

6.  Commodatum. 

7.  Mutuum. 

8.  PIgnus. 

9.  Locatlo. 

10.    Olassitication  with  Reference  to  Benefit. 


DEFINITION. 

1.  A  bailment  is  a  transfer  of  the  possession  of  personal 
property,  -without  a  transfer  of  o-wnership,  for  the 

LAW  BAIUI.— 1     , 


2  IN   GENERAL.  [Ch.    1 

accomplishment  of  a  certain  purpose,  whereupon  the 
property  is  to  be  redelivered,  or  delivered  over  to 
a  third  person  (p.  3). 

Historical  Outline. 

Little  can  be  said  with  certainty  as  to  the  origin  of  bailments,  or 
of  the  time  when  the  subject  first  assumed  a  place  of  importance  in 
the  science  of  the  law.  Among  the  early  writers  upon  English  law 
may  be  seen  occasional  attempts  to  set  forth  some  of  the  principles 
embraced  in  the  theory  of  bailments.^  Among  these,  Coke,*  in  his 
Institutes,  devotes  some  space  to  a  discussion  of  the  liability  of  the 
bailee.  Bracton  also  treated  of  the  subject,  but  his  efforts  were 
mainly  directed  towards  the  application  of  the  principles  of  the  laws 
of  the  ancients  to  the  jurisprudence  of  a  country  and  of  times  to 
which  they  were  obviously  incapable  of  adaptation. 

The  first  real  attempt  at  reducing  to  order  the  law  of  bailments  as 
recognized  in  English  jurisprudence  was  made  by  Lord  Holt  in  the 
celebrated  case  of  Coggs  v. Bernard,^  during  the  reign  of  Queen  Anne. 
The  only  real  point  in  issue  in  this  case  was  in  regard  to  the  lia- 
bility of  a  gratuitous  bailee  specially  undertaking  the  accomplish- 
ment of  a  certain  purpose,  and  the  endeavors  of  the  learned  judge  to 
give  definite  shape  and  order  to  a  subject  whose  future  importance  he 
foiesaw,  resulted  in  but  little  of  practical  value,  save  as  the  merest 
ground-work  for  future  investigation  and  research 

It  was  from  the  labors  of  Sir  William  Jones  that  the  subject  began 
first  to  take  definite  form,  and  it  is  upon  his  "Essay"*  that  all  subse- 
quent works  upon  bailment  have  been  founded.  The  "Essay"  was, 
however,  based  to  such  an  extent  upon  the  Roman  law  as  to  detract 
much  from  its  value.  The  treatise  of  Mr.  Justice  Story  ■*  was  the 
first  logical,  connected,  and  reliable  exposition  of  the  modern  law 
of  bailments  in  such  a  form  as  to  be  readily  grasped  and  understood. 
To  these  three  authors  is  due  almost  entirely  the  state  in  which  we 

>  RoUe,  Abr.  (iGfiS)  tit.  "Bailment";   Broke,  Abr.  (1576). 
»  Coke,  First  Inst.  89a,  89b. 

«  (1703)  Ooggs  V.  Bernard,  2  IxL  liaym.  tK)9;    1  Smitli,  Lead,  Cas.  (7th  Am. 
Bd.)  3i». 
♦Jones.   Ballm.  (1781). 
•  StoT7,   BaUm.  a832). 


§    1]  DEFINITION.  3 

now  find  the  laws  of  bailments,  and  upon  their  work  every  subse- 
quent writer  must  draw  heavily  in  his  treatment  of  the  same  subject. 
"Bailment"  is  a  word  of  Nonnan  derivation,  and  contains  the  bare 
idea  of  delivery.®  By  our  adoption  of  the  term,  we  have  endowed  it 
with  a  much  fuller  and  more  comprehensive  meaning;  but,  through  all 
the  various  connections  in  which  the  word  is  used  in  the  law,  the 
principal  and  underlying  idea  is  that  of  the  old  Norman  "builler," — 
to  deliver. 

Various  Definitions. 

The  writers  upon  the  subject  of  bailments  differ  essentially  with 
regard  to  the  elements  necessary  to  the  constitution  of  a  bailment;  ^ 
and  there  ai^e  consequently  nearly  as  many  definitions  as  there  are 
writers  upon  the  subject.  The  greater  number  lay  down  the  rule  that, 
upon  fulfillment  of  the  bailment  purpose,  there  must  be  a  redelivery 
of  the  article;  thus  implying  that  such  delivery  must  be  to  the  party 
who  has  made  the  temporary  transfer  of  the  article.  That  this  idea  is 
incorrect  is  evident  when  one  considers  the  numerous  cases  in  wliich 
it  is  the  intention  of  the  bailor  that  the  one  to  whom  he  intrusts  the 
goods  shall,  in  the  performance  of  his  duty,  deliver  them  to  a  third 
person,  specified  by  the  bailor.  Instances  of  this  kind  of  bailments 
will  be  found  hereafter,  in  the  case  of  mandates,  and  also  where 
goods  are  delivered  to  a  carrier  for  transportation. 

Bailment  is  defined  by  Sir  William  Jones  as  being  a  delivery  of 
goods  in  trust,  on  a  contract,  express  or  implied,  that  the  trust  shall 

«  2  Reeves,  Hist  Eng.  Law  (Ka.  1814)  p.  333;  U  Am.  Law  Rev.  42;  2  Bl. 
Comm.  451;   Jones,  Bailm.  90. 

7  When  raw  materials  are  delivered  to  a  manufacturer,  to  be  manufactured 
and  returned,  it  is  a  bailment.  Foster  v.  Pettibone,  7  N.  Y.  433.  A  bail- 
ment takes  place  when  any  article  of  personalty  is  put  by  the  owner  into 
the  hands  of  another  for  a  special  purpose,  to  be  returned  to  the  owner  or 
to  a  third  person  when  the  object  of  the  trust  is  accomplished.  State  v. 
Chew  Muck  You  (Dec.  16,  1890)  20  Or.  215,  25  Pac.  355;  citing  Krause  v. 
Com.,  93  Pa.  St.  418;  Bish.  St.  Crimes,  §  423.  See,  also,  as  to  what  consti- 
tutes a  bailment,  Pribble  v.  Kent,  10  Ind.  325;  La  Farge  v.  Riokert,  5  Wend. 
(N,  Y.)  187;  Tuttle  v.  Campbell,  74  Mich.  652,  42  N.  W.  384;  Bohnnuon  v. 
Springfield,  9  Ala.  789;  Oakley  v.  State,  40  Ala.  372;  Green  v.  Hollings- 
worth,  5  Dana  (Ky.)  173;  Newhall  v.  Paige,  10  Gray,  366;  Dunlap  v.  Gleason, 
16  Mich.  158;  Wadsworth  v.  Alcott,  6  N.  Y.  64;  Poe  v.  Home,  Busb.  (N.  O.) 
898;    Henry  v.  Patterson,  57  Pa.  St.  346;   Furlow  v.  Gillian,  19  Tex.  250. 


4  IN    GENERAL.  [Cll.    1 

be  duly  executed,  and  the  goods  redelivered  as  soon  as  tlie  time  or 
use  for  which  thej  were  bailed  shall  have  elapsed  or  been  per- 
formed.' In  this  definition,  there  is  no  intimation  that  there  can  be 
any  termination  of  the  bailment  other  than  by  a  redelivery.  Ac- 
cording to  Judge  Story,  a  bailment  is  "a  delivery  of  a  thing  in  trust, 
for  some  special  object  or  purpose,  and  upon  a  contract,  express  or 
implied,  to  conform  to  the  object  or  purpose  of  the  trust."  ®  In 
Kent's  Commentaries  a  bailment  is  said  to  be  "a  delivery  of  goods 
on  trust,  upon  a  contract,  express  or  implied,  that  the  trust  shall 
be  duly  executed,  and  the  goods  restored  by  the  bailee,  as  soon  as 
the  purpose  of  the  bailment  shall  be  answered."  ^*     The  fact  that 

8  Jones,  Bailm.  L  »  Storj-,  Bailm.  c.  1,  §  2. 

10  2  Kent,  Comm.  (4th  Bd.)  lect.  40,  p.  558.  In  regard  to  this  definition, 
Judge  Story  says:  "Mr.  Chancellor  Kent,  in  his  learned  Commentaries,  has 
expressed  a  doubt  whether  a  consignment  to  a  factor  constitutes  a  cas& 
of  bailment;  and  he  says  that,  in  the  present  work  on  bailments,  the  term 
is  applied  to  cases  in  which  no  return  or  delivery  or  redelivery  to  the  owner 
or  his  agent  is  contemplated.  He  then  adds:  'But,  I  apprehend  this  is  ex- 
tending the  definition  of  the  term  beyond  the  ordinary  acceptation  of  it  in 
the  English  law.'  2  Kent,  Comm.  lect.  40.  I  regret  that  I  cannot  concur 
in  this  opinion.  According  both  to  Lord  Holt  and  Sir  William  Jones,  a  con- 
signment to  a  factor  for  sale  falls  within  the  meaning  of  the  term  'bailment*; 
and.  indeed,  it  is  difficult  to  perceive  why  it  should  not,  if  a  bailment  be  a 
delivery  for  some  special  purpose.  Lord  Holi,  in  Coggs  v.  Bernard,  2  Ld. 
Raym.  917,  918,  in  enumerating  the  various  classes  of  bailments,  says:  'As 
to  the  fifth  sort  of  bailments,  viz.  a  delivery  to  carry  or  otherwise  manage 
for  a  reward  to  be  paid  to  the  bailee,  these  cases  are  of  two  sorts, — either  a 
delivery  to  one  that  exercises  a  public  employment,  or  a  delivery  to  a  private 
person.'  He  then  proceeds  to  state  that  of  the  first  sort  is  the  case  of  a 
common  carrier,  a  common  hoyman,  a  master  of  a  ship,  etc.  He  then  adds: 
The  second  sort  are  bailies,  factors,  and  such  like.  And,  though  a  bailie 
is  to  have  a  reward  for  his  management,  yet  he  is  only  to  do  the  best  he 
can.  And  if  he  be  robbed,'  etc.,  'it  is  a  good  account.  And  the  reason  of 
bis  being  a  servant  is  not  the  thing;  for  he  is  at  a  distance  from  his  master, 
and  acts  at  discretion,  receiving  rents  and  selling  corn,'  etc.  And  then, 
after  stating  the  extent  of  his  liability,  he  adds:  'The  same  law  is  of  a 
factor.'  Sir  William  Jones,  speaking  upon  the  subject  of  the  different  de- 
grees of  diligence  required  of  different  bailees,  says:  'When  a  person  who 
If  he  were  wholly  uninterested,  would  be  a  mandatary,  undertakes  for  a  re- 
ward to  perform  any  work,  he  must  be  considered  as  bound  still  more 
strongly  to  use  a  degree  of  diligence  adequate  to  the  performance  of  it,'  etc. 
1'hls  Is  the  case  of  commissioners,  factors,  and  bailiCCs,  when  their  undertak- 


:s     1  ]  DKFINITION.  5 

redelivery  is  not  the  sole  method  for  the  proper  termination  of  a 
bailment  is  recognized  by  Mr.  Schouler  in  his  statement  (hat  a  bail- 
ment !;;  'a  delivery  of  some  chattel  by  one  party  to  another,  to  be 
held  accor-ding  to  the  special  i)iup()sc  of  the  delivery,  and  to  be  re- 
turned or  delivered  over  when  that  special  purpose  is  accom- 
plished." ^^  In  all  of  the  foregoing  definitions,  however,  one  very 
essential  requirement  has  been  omitted,  though  it  is  generally  em- 
bodied in  their  subsequent  treatment  of  the  subject.  This  i.s  the 
fact  that,  in  order  that  a  delivery  may  constitute  a  bailment,  there 
must  be  no  transfer  of  the  right  of  ownership.*  In  some  cases  ihc 
bailee  acquires  a  special  property  in  the  chattel,  but  the  general 
ownership  still  remains  in  the  bailor.  When  this  right  passes  from 
him,  there  is  no  longer  a  bailment.  The  importance  of  this  restric- 
tion will  be  seen  when  the  distinction  between  a  bailment  and  a 
sale  is  pointed  out;  and,  in  view  of  its  importance,  it  has  been 
thought  best  to  embody  it  in  the  definition  that  a  bailment  is  a  trans- 
fer of  the  possession  of  personal  property,  without  a  transfer  of 
ownership,  for  the  accomplishment  of  a  certain  purpose,  whereupon 

ing  lies  in  feasance,  and  not  simply  in  custody.'  Joues,  Bailm.  98.  'WLeih- 
er  the  delivery  be  for  a  reward,  or  without  a  reward,  for  custody,  or  for 
feasance,  makes  no  difference  as  to  the  case  being  a  bailment,  and  the  per- 
sons to  whom  the  delivery  is  made  being  bailees,  in  the  strictest  sense  of 
the  term.  Indeed,  persons  to  whom  goods  are  delivered  for  sale  (as  factors 
are)  are  constantly  treated  in  the  old  books  as  bailees.  Thus,  in  Rolle,  Abr. 
'Accompt,'  118,  1.  35,  it  is  said:  'If  a  man  bail  goods  to  another  to  sell,  and  he 
sells  them  accordingly,  the  bailor  ought  to  charge  him  as  bailee,  and  not  as 
receiver.'  So,  in  1  Rolle,  Abr.  'Accompt,'  119,  1.  25,  It  is  said:  'If  a  man 
makes  another  the  bailee  of  his  wood,  to  put  the  same  on  sale,  he  ought 
to  be  charged  as  bailee,  although  he  has  not  sold  it.'  S.  P.  Com.  Dig.  'Ao- 
compt,'  A,  3;  41  Edw.  III.  3.  So,  in  a  recent  case,  receiving  goods  from  an- 
other, upon  an  agreement  to  sell  and  account  for  them  to  the  owner,  or 
to  return  them  as  good  as  when  taken,  with  interest,  has  been  held  to  be  a 
bailment,  and  not  a  sale.  Morss  v.  Stone,  5  Barb.  (N.  Y.)  516.  See,  also, 
Southcote's  Case,  4  Coke,  83,  84;  1  Bell,  Comm.  (4th  Ed.)  §§  202,  407,  408; 
1  Bell,  Comm.  (5th  Ed.)  pp.  259,  476;  Ersk.  Inst.  bk.  3,  tit.  1,  §§  16,  17,  26; 
Id.  tit.  3,  §§  31-39;  1  Stair,  Inst.  bk.  1,  tit.  12.  §§  1,  9,  19;"  Story,  Bailm. 
§  2,  note. 

11  Schouler,  Bailm.  (2d  Ed.)  §  2. 

*  "A  bailment  may  be  said  to  exist  whenever  the  possession  of  a  chattel  is 
lawfully  severed  from  its  ownership,  or  from  any  right  derived  from  and  rep- 
resenting ownership."     Hammond,  Synopsis  of  Bailments. 


6  IN    GENERAL.  [Ch.   1 

the  propertj  is  to  be  redelivered  or  delivered  over  to  a  third  person. 
"The  party  first  deliveriug  the  thing  is  the  bailor;  the  recipient, 
upon  '.  liom  rests  the  duty  of  a  final  return,  or  delivery  over,  is  the 
bailee."  ^^ 

Bailment  Distinguished  from  Sals. 

A  sale  has  been  defined  as  being  "a  transfer  of  the  absolute  or 
general  property  in  a  thing  for  a  price  in  money";  ^^  and  the  dif- 
ference between  a  sale  and  a  bailment  lies,  to  a  great  extent,  in  the 
fact  that  in  a  bailment  no  such  absolute  or  general  property  in  the 
thing  passes,  but  only  a  special  property  passes  to  the  bailee.^*  It 
is,  furthermore,  essential  in  the  case  of  a  bailment  that  the  identical 
article  which  is  the  subject  of  the  undertaking  shall  be  returned  to 
the  bailor  ^^  when  the  object  for  which  it  was  intrusted  to  the  bailee 
shall  have  been  completed,  or  else  that  it  shall  be  delivered  to  the 
party  specified  by  the  bailor,  delivery  to  whom  formed  a  part  of 
the  bailment  contract.  According  to  Benjamin,^'  "one  established 
test  between  a  bailment  and  a  sale  is  that  when  the  identical  thing 
delivered  is  to  be  returned,  though,  perhaps,  in  an  altered  form,  it 
is  a  bailment,  and  the  title  is  not  changed;  but  when  there  is  no 
obligation  to  return  the  specific  article  received,  and  the  receiver  is 
at  liberty  to  return  another  thing,  either  in  the  same  or  some  other 
form,  or  else  to  pay  money,  he  becomes  a  purchaser;  the  title  is 
changed;  the  transaction  is  a  sale;  and  the  property  is  at  the  re- 
ceiver's risk.  Therefore,  where,  by  the  true  construction  of  the 
contract,  ♦  *  *  ^^j^g  article  delivered  is  to  be  returned  either 
just  as  received  or  made  into  other  goods,     ♦     *     *    the  transac- 

12  Schouler.  Bailm.  (2d  Ed.)  §  2. 

IS  Benj.  Sales  (Gth  Am.  Ed.)  §  1;  Tiffany,  Sales,  1. 

"  Bretz  V.  DieM,  117  Pa.  St.  589;  Edward's  Appeal,  105  Pa.  St.  103; 
Dando  v.  Foulds,  105  Pa.  St.  74;  Enlow  v.  Klein,  79  Pa.  St.  488;  Rose  v. 
Story,  1  Pa.  St.  190;  Wheeler  &  Wilson  Manuf'g  Go.  v.  Hell,  115  Pa.  St.  487, 
6  Atl.  016. 

iTor  an  apparent  exception  in  the  case  of  a  pledge  of  corporate  stock, 
under  which  the  identical  certificates  need  not  be  returned,  see  post,  p.  l59. 

i«  Benj.  Sales  (Gth  Am.  Ed.)  p.  5,  note;  and  see  cases  there  cited.  The  fact 
that  the  bailee  agrees  to  pay  a  certain  sum,  if  he  does  not  return  the  property. 
does  not,  per  se,  convert  the  bailment  iuto  a  sale.  Westcott  v.  Thompson  18 
N.  Y.  3(33. 


§  1] 


DEFINITION. 


tion  is  a  bailment."  According  to  Tiffany,  "it  is  transfer  of  owner- 
siiip  which  distinguishes  a  sale  from  a  bailment.  The  general  test 
of  bailment  or  sale  is  whether  or  not  it  is  the  intention  of  the  par- 
ties that  the  thing  received  shall  be  returned.  If  the  identical  thing 
is  to  be  returned,  though  in  altered  form,  •  ♦  ♦  the  transaction 
is  a  bailment."  ^^      Mr.  Schouler  gives  the  following  test:    "If  the 

17  Tiffany,"  Sales,  p.  8;  Pierce  v.  Schenck,  8  HIU  (N.  Y.)  28;  Foster  v.  Pet- 
tibone,  7  N.  Y,  433;  Mansfield  v.  Converse,  8  Allen  (Mass.)  182;  Barker  v. 
Roberts,  8  Greenl.  (Me.)  79;  Brown  v.  Hitchcock,  28  Vt.  452;  Irons  v.  Kent- 
ner,  51  Iowa,  88,  50  N.  W.  73.  If,  however,  the  identical  thing  is  not  to  bo 
returned.  It  is  a  sale  or  an  exchange,  according  to  the  nature  of  the  considera- 
tion. South  Australian  Ins.  Ck).  v.  Randell,  L.  R.  3  P.  C.  101;  Powder  Co.  v. 
Burkhardt,  97  U.  S.  110,  IIG;  Sturm  v.  Boker.  150  U.  S.  312,  3.30,  14  Sup.  Ct. 
99;  McCabe  v.  McKlnstry,  5  Dill.  509,  Fed.  Cas.  No.  8,0(57;  Ewing  v.  French, 
1  Blackf.  (Ind.)  354;  Smith  v.  Clark,  21  Wend.  (N.  Y.)  83;  Norton  v.  Wood- 
ruff, 2  N.  Y.  153;  Crosby  v.  Delaware  &  H.  Canal  Co.,  119  N.  Y.  334,  23  N.  E. 
73G;  Chase  v.  Washburn,  1  Ohio  St.  244;  Buttei-field  v.  Lathrop,  71  Pa.  St 
225;  Andrews  v.  Richmond,  34  Hun,  20;  Austin  v.  Seligman,  21  Blatchf.  507, 
18  Fed.  519;  Lyon  v.  Lenon,  106  Ind.  567,  7  N.  E.  311;  Marsh  v.  Titus,  3 
Hun  (N.  Y.)  550;  Kant  v.  Kessler,  114  Pa.  St.  603,  7  Atl.  586;  BaUey  v.  Bens- 
ley,  87  111.  556;    Mack  v.  Snell,  140  N.  Y.  193.  35  N.  E.  493. 

W^hen  wheat  is  delivered  to  a  miller,  to  be  ground  and  flour  rptnrnpd  thprp. 
for,  the  transaction  is  a  bailment  when  the  flour  is  to  be  made  from  thg  iden- 
tical wheat  delivered.  Slaughter  v.  Green,  1  Rand  (Va.)  3;  Inglebright  v. 
Hammond,  19  Ohio,  337.  But,  if  the  flour  need  not  be  made  from  the  same 
wheat,  there  Is  no  bailment;  the  title  to  the  wheat  vests  in  the  miller,  ftnd 
he  would  be  the  one  to  suffer  by  its  destruction.  Hurd  v.  West,  7  Cow.  (N.  Y.J 
752,  note  page  758;  Smith  v.  Clark,  21  Wend.  83;  Norton  v.  Woodruff,  2  N. 
Y.  153;  Mallory  v.  Willis,  4  N.  Y.  76,  81;  Ewing  v.  French,  1  Blackf.  353;  Buf- 
fun  V.  Merry,  3  Mason,  478,  Fed.  Cas.  No.  2,112;  Chase  v.  Washburn,  1  Ohio  St. 
251  (distinguishing  Slaughter  v.  Green  and  Inglebright  v.  Hammond,  supra); 
Jones  V.  Kemp,  49  Mich.  9,  12  N.  W.  890  Contra,  Seymour  v.  Brown,  19  Johns. 
44  (overruled).  The  same  rule  has  been  applied  to  the  refining  of  jeweler's 
sweepings,  Austin  v.  Seligman,  21  Blatchf.  506,  18  Fed.  519;  to  the  sawing  of 
logs  into  boards.  Barker  v.  Roberts,  8  Groenl.  (Me.)  79;  Pierce  v.  Schenck,  3 
Hill  (N.  Y.)  28;  to  the  delivery  of  hides  to  be  tanned,  Jenkins  v.  Eichelberger, 
4  Watts  (Pa.)  121.  But  see  Weir  Plow  Go.  v.  Porter,  82  Mo.  23;  Caldwell  v. 
Hall,  60  Miss.  330. 

Wheat  and  other  prrain  air^  often  stored  in  elgv.ntorK  where  thp  pinp..iiv  nt  a 
number  of  persons  is  placed  in  the  sarpp  hinsj.  and  the  elevator  own<^r  t]pH  a 
right,  by  express  contract  or  by  custom,  to  sell  grain  from  the  common  m.iss, 
his  only  obligation  being  to  return  f^rain  of  the  same  grade  as  that  received. 
Some  cases  hold  such  a  transaction  to  be  a  sale,   in   conformity   with   the 


8  IN    GENERAL.  [Ch.   1 

terms  of  the  undertaking  contemplate  returning  money  instead,  or 
any  equivalent,  the  transaction  would  constitute,  not  a  bailment,  but 
a  sale."**  It  will  be  seen  that  the  same  idea  underlies  these  and 
other  distinctions  between  the  two  transactions;  that,  as  was  first 
stated,  in  a  sale  the  owner  of  goods  parts  with  the  general  property 
in  them,  and  the  right  of  ownership  is  transferred  to  the  buyer, 
while  in  a  bailment  no  such  right  of  ownership  is  transferred  by  the 
bailor's  delivery  of  the  thing  to  the  bailee,  the  only  right  which  the 
latter  can  acquire  being  a  special  property  in  the  thing.*" 
Mutuxim. 

In  this  connection  may  be  noticed  the  "mutuum"  of  the  Roman 
law,  under  which  title  were  comprised  those  deliveries  of  goods 
which  were  expected  to  be  consumed  by  the  recipient,  and  for  which 
other  goods  of  the  same  kind  were  to  be  given  to  the  owner  in  re- 
turn. Under  the  common  law,  as  will  be  seen  from  the  definitions 
just  quoted,  such  a  transaction  would  be  considered  as  virtually  con- 
stituting a  sala*" 

principles  laid  down  above.  Other  cases  treat  It  as  a  bailment.  TTie  follow- 
ing hold  it  a  sale:  Chase  v.  Washburn,  1  Ohio  St.  244;  Lonergan  v.  Stewart, 
55  m.  44;  Richardson  v.  Olmstead,  74  lU.  218;  BaUey  v.  Bensley,  87  111. 
556;  Johnston  v.  Browne,  37  Iowa,  200;  Carlisle  v.  Wallace,  12  Ind.  252; 
RahiUy  v.  WUson,  3  DUl.  420,  Fed.  Gas.  No.  11,532;  Fishback  v.  Van  Dusen, 
83  Minn.  Ill,  22  N.  W.  244;  South  Australian  Ins.  Co.  v.  Randell,  6  Moore, 
P.  C.  (N.  S.)  341;  Woodward  v.  Semans,  125  Ind.  330,  25  N.  E.  444;  or  that 
It  is  a  sale  as  soon  as  disposed  of  by  the  bailee.  Nelson  v.  Brown,  44  Iowa,  455. 
Ab  holding  the  transaction  a  bailment,  see  Sexton  v.  Graham,  53  Iowa,  181,  4 
N.  W.  1090;  Nelson  v.  Brown,  53  Iowa,  555,  5  N.  W.  719;  Ledyard  v.  Hibbard, 
48  Mich.  421,  12  N.  W.  637;  Andrews  v.  Richmond,  34  Hun  (N.  Y.)  20;  Rice  v, 
Nixon,  97  Ind.  97;  Bottenberg  v.  Nixon,  97  Ind.  106;  Irons  v.  Kentner,  51 
Iowa,  88,  50  N.  W.  73.  The  several  owners,  it  Is  held,  become  tenants  in  com- 
mon of  the  whole  mass  of  grain.  Sexton  v.  Graham,  supra;  Andrews  v. 
Richmond,  supra;  Aithur  v.  Chicago,  R,  I.  &  P.  R.  Co.,  01  Iowa,  648,  17  N. 
W.  24;  Dole  v.  Olmstead,  36  111,  150.  For  a  discussion  of  the  question  and 
review  of  the  cases,  see  article  on  "Grain  Elevators"  in  6  Am.  Law  Rev.  450. 
And  see  post,  p.  244. 

18  Schouler.  Bailm.  (2d.  Ed.)  §  6. 

10  A  vendor  of  goods  may  become  a  bailee  by  agreeing  by  the  same  con- 
tract to  store  them.  Oakley  v.  State,  40  Ala.  372.  But  no  bailment  arises 
by  Implication  from  a  sale  on  a  void  consideration.  Green  v.  Hollingsworth, 
5  Dana  (Ky.)  173, 

a 9  Louergan  v.  Stewart,  55  111.  44;    McKay  v,  Hamblin,  40  Miss,  472;   Fos- 


§    1]  DEFINITION.  9 

Bailment  voiih  Option  to  Purchase. 

A  delivery  in  the  nature  of  a  bailment  may  be  made  with  the  un- 
derstanding that,  upon  certain  conditions,  the  thing  delivered  shall 
become  the  property  of  the  bailee;  and,  when  he  has  performed  such 
conditions,  the  bailment  relation  terminates,  and  a  sale  is  thereby 
constituted.  Such  a  transaction  would  be  a  bailment  with  an  op 
tion  to  purchase."^ 

ter  V.  Pettibone,  7  N.  Y.  483;  Prichett  v.  Cook,  62  Pa.  St.  193;  Powder  Ck). 
V,  Burkbardt,  97  U.  S.  110.  Ajid  see  cases  cited  in  the  precediug  notes. 
As  to  the  use  of  the  terms  "borrower"  and  "lender,"  in  mutuum  transac- 
tions, see  Fosdick  v.  Greene,  27  Ohio  St.  484.  "A  deposit  differs  from  what 
is  called  in  the  civil  law  a  'mutuum,'  for  in  the  latter  case  the  identical 
thing  lent  is  not  to  be  returned,  but  another  thing  of  the  same  kind,  quality, 
nature,  or  value.  Thus,  for  example,  where  the  loan  is  of  money,  wine,  or 
other  things  that  may  be  valued  by  number,  weight,  or  measure,  and  arc 
to  be  restored  only  in  equal  value  or  quantity,  it  is  a  mutuum.  In  a  mutuum 
the  property  passes  immediately  from  the  mutuant  or  lender  to  the  mutuary 
or  borrower,  and  the  identical  thing  lent  cannot  be  recovered  or  redemanded. 
Indeed,  It  is  said  in  the  civil  law  to  derive  its  name  from  this  very  cir- 
cumstance." Story,  Bailm.  §  47.  In  regard  to  the  Roman  mutuum,  Gains 
says:  "This  chiefly  relates  to  things  which  are  estimated  by  weight,  num- 
ber, or  measure,  such  as  money,  wine,  oil,  corn,  bronze,  silver,  gold.  We 
transfer  our  property  in  these,  on  conditiou  that  the  receiver  shall  transfer 
back  to  us  at  a  future  time,  not  the  same  things,  but  other  things  of  thi 
same  nature;  wherefore  this  contract  is  called  'mutuum,'  because  therel 
meum  becomes  tuum."  Poste  Gaius,  III.  §  90.  If  goods  are  taken  with  an 
option  to  purchase,  the  transaction  is  a  bailment;, otherwise  if  there  is  a  sal 
with  the  condition  that  the  vendee  may  return  the  goods  if  they  are  not  satis- 
factorj.  Hunt  v.  Wyman,  100  Mass.  198;  Chamberlain  v.  Smith,  44  Pa.  St. 
431.  But  where  the  title  passes  with  a  right  in  the  vendor  to  rescind  for 
cause,  it  is  a  conditional  sale.  Bryant  v.  Crosby,  36  Me.  562.  "If  the  trans- 
action was  a  conditional  sale,  whether  in  form  or  in  substance,  we  have  held 
the  title  to  be  in  the  vendee,  and  therefore  suliject  to  the  claims  of  his  cred- 
itors; but  if  it  was  a  bailment,  we  have  held  the  title  to  be  in  the  bailor, 
and  not  subject  to  any  claims  of  the  vendee's  creditors."  Brown  v.  Billing- 
ton,  163  Pa.  St.  76,  29  Atl.  904,  905.  See.  also,  Monjo  v.  French,  103  Pa. 
St.  107,  29  Atl.  907;    Ferguson  v.  Lauterstein,  160  Pa.  St.  427,  28  AO.  852. 

21  Carpenter  v.  Griffin,  9  Paige,  Ch.  (N.  Y.)  310;  Sargent  v.  Gile.  S  N.  II. 
825.  Where_two  colts  were  delivered  for  keepin?^.  and  to  be  sold  by  bailee 
If  possible.  If  not  to  be  returned,  the  contract  was  held  to  be  one  of  bailment. 
MIddleton  v.  Stone,  111  Pa.  St.  589,  4  Atl.  523.  A  conditional  vendee  of 
personal  property  in  his  possession  sold  it  unconditionally  before  the  time 
limited  in  the  contract  of  purchase.     It  was  held  that  this  terminated  the 


10  IN    GENERAL.  [Ch.   1 

GENERAL  PRINCIPLES  COMMON  TO  ALL  BAILMENTS. 

2.  The  rights  and  liabilities  of  the  parties  to  a  bailment 
are  primarily  determined  by  the  contract  and  bail- 
ment purpose.  The  following  principles,  however, 
are  common  to  all  classes  of  bailments: 

(a)  The   subject    of  the    bailment    must    be    personalty 

(p.  11). 

(b)  There  must  be  a  delivery,  actual  or  constructive,  of 

the  property  (p.  12). 

(c)  There  must  be  a  voluntary  acceptance  by  the  bailee 

(p.  13). 

(d)  There  must  be  competent  parties  (p.  16). 

(e)  Possession  by  the  bailor  is  sufi&cient  title  to  support 

a  bailment  (p.  20). 

(f )  The  right  of  property  remains  in  the  bailor,  and  he 

may  maintain  an  action  to  protect  it  (p.  21). 

(g)  The  bailee  is  estopped  from  disputing  that  the  bailor 

had  title   at   the   time    the    goods   were    delivered 
(P-  22). 
(h)  The   bailor   must   not  expose   the   bailee   to   danger 

without  warning  (p.  23). 
(i)  The  bailee  must  exercise  due  care  (p.  23). 
(j)  The  parties  may  enlarge  or   diminish  their  liability 
by  special  contract,  provided — 
(1)  The  contract  is  not  in  violation  of  law  or  against 
public  policy;  and 

bailment,  and  the  vendor  might  reclaim  the  property  at  any  time  after  such 
sale  and  delivery.  King  v.  Bates,  57  N.  H.  446;  Farrant  v.  Thompson,  2 
Dowl.  &  R.  1.  It  may  be  provided  that  the  title  shall  remain  in  the  bailor, 
and  thus  a  bailment  be  established,  with  a  further  provision  giving  the 
bailee  an  option  to  consume  the  property.  Until  the  option  is  exercised,  the 
transaction  remains  a  bailment.  Armington  v.  Houston,  38  Vt."  448.  So  it 
has  been  held  a  bailment  in  a  case  where  a  sura  of  money  was  deposited 
with  a  merchant,  he  occasionally  withdrawing  small  amounts  to  make 
change.  Caldwell  v.  Hall,  GO  Miss.  330.  So  an  option  may  reside  in  the 
bailor  to  make  the  transaction  a  sale;  but,  unless  the  option  is  exercised, 
the  bailment  relation  will  continue.     Weir  Plow  Co.  v.  Porter,  82  Mo.  23. 


§    '-^]  GENRFiAL    PRINCIPLES    COMMON    TO    ALL    BAILMKNT8.  11 

(2)  The  liability  of  the  bailee  is  not  to  be  enlarged 
or   restricted    by  words    of    doubtful   import 
(p.  27). 
(k)  The   bailee  must  exercise    perfect   good   faith  at   all 
times.     He  is  always  liable  for  his  positive  wrong 
or  fraud  (p.  28). 
(1)  The  bailee  must  deliver  up   the  property  uninjured 
at  the  termination  of  the  bailment,  or  excuse  his  in- 
ability to  do  so  (p.  30). 

Subject  must  be  Persoivdiy. 

Personal  property  only  may  be  the  subject  of  a  bailment.  There 
can  be  no  bailment  of  real  property.*^  By  the  civil  law,  only  cor- 
poreal personalty  might  be  bailed,  on  the  ground  that  it  alone  admit- 
ted of  the  actual  delivery  requisite  to  constitute  a  bailment.^^  At 
the  common  law,  however,  not  only  corporeal  personalty  is  bailable, 
but  also  any  incorporeal  personalty,  evidences  of  title  to  which  or 
vouchers  for  which  may  be  transferred.-*  Thus,  debts  or  choses  in 
action  may  at  the  present  time  form  the  subject  of  a  bailment.-* 

While,  technically  speaking,  there  may  not  be  a  bailment  of  a  thing 
not  yet  in  existence,  yet  this  result  is  practically  attained,  as  will  be 
seen  in  the  case  of  pledges,  by  a  contract  for  a  pledge  of  the  thing; 
and  the  pledgee's  right  will  immediately  attach  when  the  tiling 
actually  comes  into  existence,^"  unless,  as  will  be  seen,^^  rights  of 
third  persons  have  intervened. 

22  A  bailment  can  exist  only  as  to  a  chattel,  not  as  to  realty.  Williams 
V.  Jones,  3  Hurl.  &  C.  256;  Coupledike  v.  Coupledike,  Cro.  Jac.  39.  See  post, 
p,  151,  note  251,  for  the  civil-law  pledjje  of  real  property  called  "Antichresis." 
And  cf.  Dewey  v.  Bowman,  8  Cal.  145. 

28  Story,  Bailm.  §§  51,  373;    Schouler,  Bailni.  (2d  Ed.)  §  31. 

2*  McLean  v.  Walker,  10  Johns.  (N.  Y.)  471;  Jan'is  v.  Rogers.  15  Mns.s. 
389;  White  v.  Phelps,  14  Minn.  27  (Gil.  21);  Appleton  v.  Donaldson.  3  Pa. 
St.  381;    Loomis  v.  Stave,  72  111.  G23. 

2  6  Hanna  v.  Holton,  78  Pa.  St.  334;  Walker  v.  Staples,  5  Allen  (Mass.)  34; 
Shaw  v.  Wilshire,  65  Me.  485;  Hudson  v.  Wilkinson,  45  Tex.  444;  In  re 
Rawson,  2  Low.  519,  Fed.  Cas.  No.  4,837. 

2  8  Story,  Ballm.  §  294.  Thus,  in  Macomber  v.  Parker.  14  Pick.  (Mass.) 
497,    a  brlckmaker  agreed  with  the  lessees  of  a  brickyard  In  which  he  waa 

2  7  Post,  p.  119. 


12  IN    GENERAL.  [Ch.   1 

Dcliiery. 

Qeliveryis  absolutely  essentialjto  a  bailment,  and  the  delivery 
marks  tberealinception_of  the  bailment  Where  there  is  no  de- 
livery, there  is  no  bailment."?  Delivery  may  be  either  actual  or  con- 
structive. An  actual  delivery  is  where  there  is  an  actual  transfer  of 
the  possession  of  the  thing  from  the  bailor  to  the  bailee.  A  con- 
structive delivery  arises  M-here  there  is  no  actual  change  of  posses- 
sion, but  when,  from  the  circumstances  of  the  case,  an  intention  on 
the  part  of  the  person  in  possession  to  thereafter  act  as  bailee  for 
another  may  be  implied."®  Thus,  a  vendor  holding  goods  after  a  sale 
does  so  as  a  bailee  for  the  vendee."*  Other  instances  of  constructive 
delivery  are  seen  where  a  creditor  holding  a  pledge  assents,  after  the 
debt  has  been  paid,  to  hold  it  for  the  benefit  of  his  debtor;  or  where 
a  thing  has  been  hired,  and  the  purpose  of  the  hiring  has  been  exe- 
cuted, but  the  thing  remains  with  the  bailee,  with  the  lender's  assent. 
In  each  case  a  new  bailment — one  for  the  sole  benefit  of  the  bailor, 
instead  of  one  for  their  mutual  benefit — is  created,  though  there  is  no 
actual  new  delivery  or  change  of  possession.  The  retention  of  pos- 
session after  the  termination  of  the  former  bailment  isa  sufficient 
constructiye^delivery.'^  A  sufficient  delivery  may  be  made  to  a 
servant  or  an  agent  of  the  baileg^"" 

manufacturing  bricks  that  they  should  hold  the  bricks  to  be  made  as  se- 
curity for  money  advanced  by  them.  It  was  held  that  the  bricks  were 
pledged  as  fast  as  made.  See,  also,  Cushman  v.  Hayes,  46  111.  145;  Smith- 
urst  V.  Edmunds,  14  N.  J.  Eq.  408. 

«8  Schouler,  Bailm.  §§  21,  32.  "A  mere  contract  where  the  thing  has  never 
really  or  constructively  been  delivered,  does  not  amount  to  a  deposit.  But 
the  delivery,  both  by  our  law  and  the  civil  law,  is  complete,  whether  given 
personally  by  the  bailer,  or  by  his  order  or  approbation,  when  and  as  soon  as 
the  thing  is  received  by  the  bailee,  or  by  another  for  him,  with  his  privity 
and  approbation.  When  It  be  received  by  another  person  it  must  clearly  ap- 
pear that  the  delivery  Is  not  only  on  his  own  account  but  is  on  account  of  the 
party  who  is  charged  as  bailee."     Story,  Bailm.  §  55. 

2»  Story,  Bailm.  §  55;  Whitaker  v.  Sumner,  20  Pick.  (Mass.)  399;  Tuxwoith 
v.  Moore,  9  Pick.  (Mass.)  346.  The  property  may  be  regarded  as  in  bailee's 
possession,  without  any  actual  removal,  if  It  passes  under  bailee's  exclusive 
control.  Dillenback  v.  Jerome,  7  Cow.  294;  Blake  v.  Kimball,  106  Mass. 
115. 

«o  Oakley  v.  State.  40  Ala.  372. 

«i  Macomber  v.  Parker,  14  Pick.  (Mass.)  497,  509. 

•2  City  Bank  of  New  Haven  v.  Perkins,  29  N.  Y.  544;    Brown  v.  Warren, 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    BAILMENTS.  18 

Acceptance  by  Bailee —  Whether  Bailment  is  Founded  on  Contract. 

The  statement  that  a  bailment  is  a  delivery  upon  a  contract, 
express  or  implied,  is  open  to  critieisra.  It  is  true  that  in  most  in- 
stances a  bailment  is  founded  on  contract.  Wherever  there  is  a 
voluntary  delivery  of  the  thing  in  question,  there  is  a  contract, 
though  it  may  be  only  to  return  the  property  when  demanded.  But 
in  many  cases  the  law,  from  considerations  of  public  policy,  imposes 
the  liability  of  a  bailee  on  one  who  has  come  into  possession  of 
another's  property  without  private  agreement.  Liability  cannot  be 
thrust  upon  one  without  his  knowledge  or  consent,  but,  where  one 
knowingly  holds  possession  of  another's  property,  he  is  liable  as 
bailee.  Thus,  where  one  finds, ^^  steals,  or  converts  property,  he  is 
liable  as  a  bailee.^*  Of  course,  it  may  be  said  that  in  this  class  of 
cases  the  law  will  imply  a  contract  to  return  the  property,  and  the 
wrongdoer  would  be  estopped  to  deny  it.  But  there  is,  in  fact,  no 
contract.      "If  there  is  no  agreement,  there  can  be  no  true  contract. 

43  N.  H.  430;  Boynton  v.  Payrow,  G7  Me.  587;  McCready  v.  Haslock,  :: 
Tenn.  Ch.  13;  Lloyd  v.  Barden,  3  Strobh.  (S.  G.)  34;^.  One  holding  as  serv- 
ant for  another  is  not  bailee.  Com.  v.  Morse,  14  Mass.  217;  Dilleuback  v. 
Jerome,  7  Cow.  294;  Ludden  v.  Leavitt,  9  Mass.  104;  Warron  v.  Lelaud,  Id. 
264;   Waterman  v.  Robinson,  5  Mass.  302. 

38  One  who  finds  a  thing  is  not  compelled  to  assume  its  custody;  but,  if 
he  voluntarily  does  so,  he  will  be  held  by  the  law  to  be  a  depositary,  and 
must  exercise  the  care  due  from  such  a  bailee.  In  Cory  v.  Little,  6  N.  H. 
218,  it  was  held  that  one  who  finds  a  horse  wrongfully  in  his  field  may  turn 
it  Into  the  highway;  and,  if  it  stray  away,  he  will  not  be  responsible  for  it. 
In  Vandrink  v.  Archer,  1  Leon.  221,  223,  It  was  said  by  Anderson,  J.,  that, 
"when  a  man  comes  to  goods  by  trover,  there  is  not  any  doubt  but  by  law 
he  hath  liberty  to  take  possession  of  them.  But  he  cannot  abuse  them, 
kill  them,  or  convert  them  to  his  own  use,  or  make  any  profit  of  them;  and, 
if  he  do,  it  is  great  reason  that  he  be  answerable  for  the  same.  But  if  he 
lose  such  goods  afterwards,  or  they  be  taken  from  him,  then  he  shall  not 
be  charged;  for  he  is  not  bound  to  keep  them."  In  Isaack  v.  Clark,  Lord 
Coke  said:  "If  a  man  finds  goods,  an  action  on  the  case  lies  for  his  ill  and 
negligent  keeping  of  them,  but  not  trover  or  conversion,  because  this  is  but 
a  nonfeasance."  According  to  St.  Germain  (Doct.  &  Stud.  Dial.  2.  c.  38K 
"if  a  man  finds  goods  of  another,  if  they  be  after  hurt  or  lost  by  willful  neg- 
ligence, he  shall  be  charged  to  the  owner.  But,  if  they  be  lost  by  other 
casualty,  ♦  •  •  1  think  he  be  discharged."  As  to  this  point,  see  Dough- 
erty V.  Posegate,  3  Iowa,  8S;  Meny  v.  Green,  7  Mees.  &  W.  623,  631;  People 
V.  Cogdell,  1  Hill  (N.  Y.)  94;    People  v.  Anderson,  14  Johns.  (N.  Y.)  294, 

84  Newhall  v.  Paige,  10  Gray  (Mass.)  366. 


14  IN    GENERAL.  [Ch.    1 

There  may  be  an  obligation,  but,  unless  this  obligation  is  imposed 
by  the  free  consent  of  the  parties,  the  obligation  is  not  a  contractual 
obligation.  You  may  call  it  a  'contract,'  as  you  may  call  black 
■""^  .  'white,'  but  calling  it  so  cannot  make  it  a  contract."  '® 
|t«  ('^^-•^^♦^^cceptance  may  be  actual  or  constructive.'^  Until  there  is  some- 
iA\t<*^^  thing  to  show  bailment  notice,  or  knowledge,  there  is  no  bailment. 
The  bailee  must  know  that  he  is  a  bailee.*®  Where  property  comes 
into  one's  possession  without  his  knowledge,  he  is  in  no  sense  a 
bailee  until  he  learns  of  the  possession.  After  he  acquires  knowl- 
edge of  it,  he  is  a  quasi  or  constructive  bailee.  Public  policy  im- 
poses upon  him  the  obligation  of  good  faith  in  dealing  with  the 
goods.  Thus,  where  a  man  buys  goods  in  a  store,  and  puts  them 
in  another's  wagon  in  the  street,  and  the  latter  drives  away  with 
them,  after  he  acquires  knowledge  of  their  presence,  he  is  a  quasi 
bailee,  and  must  exercise  good  faith.  It  may  be  safely  said  that 
wherever  possession  of  a  thing  is  knowingly  acquired,  unaccompa- 
nied by  the  right  of  ownership,  a  bailment  relation  is  established, 
and  the  person  in  possession  holds  the  thing  acquired  simply  as  a 
bailee.*®  The  delivery  is  the  keynote  of  the  whole  transaction.*" 
It  is  the  inception  of  the  bailment,  and  may  be  either  actual  or  con- 
structive, as  where  a  vendor  retains  possession  after  a  sale.*^  But 
one  cannot  be  made  a  bailee  against  his  will.** 

8«  Clark,  Cont.  752. 

«T  Rodgers  v.  Stophel,  32  Pa.  St.  111. 

"  Where  goods  are  placed  in  a  carrier's  possession  without  his  knowledge 
or  consept^  there  can  be  no  contract  of  bailment.  Where  one  checked~his 
trunk  on  a  railway  as  baggage,  paying  no  compensation  therefor  except 
his  fare  as  a  passenger^  and  giving  no  notice  that  it  contained  valuable,  and 
costly  merchandise,  It  was  held  that  the  want  of  fair  dealing  on  his  part 
waa  a  full  answer  to  any  action  upon  any  implied  contract  of  bailment  for 
hire,_  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348. 

8  8  Sehouler,  Bailm.  (2d  Ed.)  §  3;  Wolf  v.  Shannon,  50  III.  App.  396;  Jones 
V.  Ma.xwell,  1  Lack.  Leg.  N.  191. 

«o  Sehouler.  Bailm.  (2d  Ed.)  §§  21,  34,  71. 

*i  See,  also,  BenJ.  Sales,  bk.  2,  c.  3;  Bishop  v.  Shillito,  2  Barn.  &  Aid.  329, 
note;  Harrington  v.  King,  121  Mass.  2G9;  King  v.  Bates,  57  N.  H.  446.  As 
to  the  effect  of  a  conditional  sale  on  credit,  reserving  ownership  In  the  ven- 
dor pending  the  payment,  see  Brunswick  &  Balke  Co.  v.  Hoover,  95  Pa.  St 
508;   Stadtfeld  v.  Huntsman,  92  Pa.  St.  53;   ante,  p.  9. 

«2  Lloyd  V.  Bank,  15  Pa.  St.  172;  (2ory  v.  Little,  6  N.  H.  213.  But  cf. 
Leavy  v.  Klnsella,  39  Conn.  50. 


^    2]  GKNKIIAI.    PRINCIPLES    COMMON    TO    ALL    BAILMENTS.  15 

Same — Consideration. 

The  objection  that,  in  cases  of  bailments  for  the  sole  benefit  of  the 
bailor,  there  is  no  consideration  for  a  contractual  liability  on  the 
part  of  the  bailee,  is  more  fanciful  than  real.*'  A  detriment,  or 
parting  with  a  present  right,  or  delaying  the  present  use  of  a  right, 
is  a  sufficient  consideration  to  support  a  contract  by  the  promisor, 
although  the  promisor  derives  no  benefit  from  it.  In  the  case  of  a 
bailment,  the  yielding  up  of  the  bailor's  possession,  custody,  and 
care  of  the  thing  to  the  bailee,  upon  the  faith  of  his  engagement  or 
promise  to  redeliver  it,**  is  a  sufficient  consideration.  The  bailee's 
assumption  of  the  undertaking  has,  perhaps,  prevented  the  selection 
of  one  better  fitted  to  execute  it." 

Same — Constructive  Bailees. 

It  is  not  necessary  that  possession  shall  have  been  obtained  by 
the  will  of  the  owner,  or  with  the  intention  of  holding  as  bailee, 
though  the  great  majority  of  bailments  with  which  we  are  concerned 
are  founded  on  mutual  agreement.  One  may  become  a  constructive 
bailee  without  any  agreement  between  the  parties;*"    as,  for  in- 

*8  Schouler,  Ballm.  (2d  Ed.)  §  9. 

<*  It  was  held  by  Sir  James  Mansfield  In  Mills  v.  Graham,  4  Bos.  &  P. 
140,  145,  that  "a  bailment  of  ffoods  to  be  redelivered  imports  an  agreement 
to  redeliver;  all  special  bailments  import  a  contract  to  redeliver  when  the 
purpose  for  which  the  goods  were  deposited  is  answered."  And  see,  gen- 
erally, Clark  V.  Gaylord,  24  Conn.  484;  McCauley  v.  Davidson,  10  Minn.  418 
(Gil.  335);  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  GO  N.  Y.  278;  Newhall  v. 
Paige,  10  Gray  (Mass.)  366;   Mariner  v.  Smith,  5  Heisk.  (Tenn.)  203. 

4  6  Schouler,  Ballm.  §  34;  Balfe  v.  West,  13  C.  B.  466,  472,  and  cases  cited; 
Giles  V.  Bradley,  2  Johns.  Cas.  253;  Orsei?  v.  Storms.  9  Cow.  (N.  Y.)  687; 
Roulston  V.  McClelland,  2  E.  D.  Smith  (N.  Y.)  60.  A  bailment  of  personal 
•property  constitutes  a  valid  consideration  for  a  promise  to  return  it  Clark 
V,  Gaylord,  24  Conn.  484. 

4«  Schouler,  Bailm.  (2d  Ed.)  §  2.  "The  obligation  of  the  bailee  may  arise 
by  implied  contract,  as  well  as  express  agreement.  Thus,  a  finder  of  a  lost 
chattel  or  chose  in  action  may  become  a  bailee  of  it  by  the  act  of  finding 
and  keeping  it  in  custody.  And  so,  too,  is  the  recipient  of  a  chattel  or  chose 
in  action,  either  directly  from  the  hands  of  the  absolute  owner,  or  through 
the  intervention  of  a  private  agency,  such  as  a  manager,  or  a  pul)lic  agency, 
such  as  a  common  carrier  or  the  government  mails.  Hence  this  character 
of  bailee,  with  this  special  property  in  the  thing,  may  arise  without  any  ex- 
press agreement  to  receive  and  to  hold  for  a  particular  purpose.     It  may 


16  IN    GENERAL.  [Ch.    1 

Stance,  in  the  case  of  an  officer  seizing  goods  under  process,*^  or,  as 
already  stated,  when  one  steals  or  converts  another's  property.  One 
who  negligently  receives  goods  addressed  to  another  is  liable  as 
bailee  for  the  owner.*®  "^Tiere  property  comes  into  the  possession 
of  a  public  officer  by  reason  of  his  official  position,  although  it  be 
not  his  duty  by  law  to  receive  it,  he  will  be  considered  a  bailee,  and 
must  exercise  ordinary  care  towards  the  property.*®  The  finder  of 
goods  is,  in  the  eyes  of  the  law,  constituted  a  bailee  for  the  owner, 
and  therefore  responsible  for  their  safe-keeping.^"     ^ 

Competency  of  Parties.  y^*"**"'     iT*^    ' 

In  most  instances,  bailments  are  created  by  express  contract;  and, 
when  this  is  so,  the  parties  must,  of  course,  be  capable  of  contract- 
ing, or  no  liability  will  arise  upon  the  bailment  contract.  Here  the 
ordinary  rules  as  to  contractual  capacity  apply.^^  Infants,^^  per- 
sons non  compos,"*^  and  married  women  ^*  ai'e  under  the  same  disabil- 

arise  from  the  bare  fact  of  the  thing  coming  into  the  actual  possession  and 
control  of  a  person  fortuitously,  or  by  mistake  as  to  the  duty  or  ability  of 
the  recipient  to  effect  the  purpose  contemplated  by  the  absolute  owner." 
Folger,  J.,  in  Phelps  v.  People,  72  N.  Y.  334,  357. 

<T  Phillips  V.  Bridge,  11  Mass.  242;  Tyler  v.  Ulmer,  12  Mass.  163;  Blake  v. 
Kimball,  106  Mass.  115,  116;  Parrott  v.  Dearborn,  104  Mass.  104;  Jenner  v. 
Joliffe,  6  Johns.  (N.  Y.)  9;  Burke  v.  Trevitt,  1  Mason,  96,  100,  Fed.  Gas.  No, 
2,163. 

♦  8  Newhall  v.  Paige.  10  Gray  (Mass.)  366. 

*»  So,  where  a  draft  comes  to  the  office  of  a  state  officer  in  the  regular 
course  of  business,  and  is  received  by  a  subordinate  appointed  by  the  officer, 
and  removable  at  his  pleasure,  and  whom  he  has  permitted  to  receive  such 
articles,  the  officer  becomes  a  bailee  of  the  draft.  Phelps  v.  People,  72  N. 
Y.  334;  Wltowski  v.  Brennan,  41  N.  Y.  Super.  Gt.  284;  Cross  v.  Brown,  41 
N.  H.  2S3;  Mott  v.  Pettit,  1  N.  J.  Law,  344.  Upon  the  dissolution  of  an  at- 
tachment, the  officer  holding  possession  of  the  goods  becomes  a  bailee  for  the' 
owner.     State  v.  Fitzpatrick,  64  Mo.  185. 

^^  See  ante,  p.  13. 

»i  Clark.  Cont.  211;   Anson,  Cont.  c.  3. 

"  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W.  772;  Harner  v.  Dipple,  31  Ohio 
.St  72;  Illinois  Land  &  Loan  Co.  v.  Bonuer,  75  111.  315;  Owen  v.  Long,  112 
Mass.  403;    Fetrow  v.  Wiseman,  40  Ind.  148. 

»«  Eaton  V.  Eaton.  37  N.  J.  Law,  108;  Mutual  Life  Ins.  Co.  of  New  York 
T.  Hunt.  79  N.  Y.  541;  Fay  v.  Burditt,  81  Ind.  433;  Scanlan  v.  Cobb,  85  111. 
296;   Shoulters  v.  Allen,  51  Mich.  531,  16  N.  W.  888. 

•♦  Hagebush  v.  Ragland,  78  111.  40. 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    BAILMENTS.  17 

Ities  with  respect  to  bailment  contracts  as  they  are  with  respect  to 
other  contracts.  Fraud,  duress,  or  anything  destroying  the  mutual 
assent  will  render  the  bailment  contract  void."  The  legal  disabil- 
ity of  infants,  maiTied  women,  and  persons  non  compos  mentis  is, 
however,  to  be  used  as  a  shield,  and  not  as  a  sword.  While  they 
are  not  liable  on  the  bailment  contract  for  its  breach,  yet,  if  they 
have  come  ipto  possession  of  the  goods,  they  must  restore  them,  if 
possible.  Persons  under  disabilities  are  liable  for  the  conversion  of 
goods  bailed  to  them.  Their  disabilities  relieve  them  from  liability 
on  their  contracts,  but  not  from  liability  for  their  torts."^"  For  ex- 
ample, where  property  is  bailed  to  an  infant,  his  infancy  is  a  pro- 
tection to  him  for  any  nonfeasance  so  long  as  he  keeps  within  the 
terms  of  the  bailment.  But,  when  he  departs  from  the  object  of 
the  bailment,  it  amounts  to  a  conversion  of  the  property,  and  he  is 
liable  to  the  same  extent  as  if  he  had  wrongfully  taken  the  prop- 
erty in  the  first  instance."^  So  where  an  infant  hired  a  horse  for 
the  purpose  of  going  to  B.  and  returning  the  same  day,  but,  instead 
of  doing  so,  returned  by  a  circuitous  route,  which  nearly  doubled  the 
distance,  and  stopped  on  the  way,  lea\ing  the  horse  almost  all  night 
without  food  or  shelter,  it  was  held  that  these  acts  constituted  a 
conversion,  and  that  the  infant  was  liable  in  trover  for  the  death 
of  the  horse,  caused  by  such  overdriving  and  exposure."^ 

On  the  other  hand,  an  infant  may  make  a  bailment,  and  all  the 
obligations  of  the  contract  will  be  binding  on  the  bailee  until  the 

0  8  See  Clark,  Cont.  288. 

BO  Schouler,  Bailm.  (2d  Ed.)  §  27;  Mills  v.  Graham,  1  Bos.  &  P.  N.  R.  140. 
In  Jennings  v.  Rundall,  8  Term  R.  335,  it  was  said  that  a  plaintiff  cajinot 
convert  an  action  founded  on  a  contract  Into  a  tort,  so  as  to  charge  an  infant 
defendant.  Therefore,  where  the  plaintiff  declared  that,  at  the  defendant's 
request,  he  had  delivered  a  mare  to  the  defendant,  to  be  moderately  ridden, 
and  that  the  defendant,  maliciously  intending,  etc.,  wrongfully  and  injuriously 
rode  the  mare,  so  that  she  was  damaged,  etc.,  It  was  held  that  the  infant 
migh  plead  his  Infancy  In  bar,  the  action  being  founded  on  a  contract  See, 
also,  Homer  v.  Thwing,  3  Pick.  (Mass.)  492;  Hall  v.  Oorcoran,  107  Mass.  261. 

67  Clark,  Cont  261;  Bumard  v.  Haggis,  15  C.  B.  (N.  S.)  45;  Homer  t. 
Thwing,  3  Pick.  (Mass.)  492;  Ray  v.  Tubbs,  50  Vt.  688.  But  see  Penrose  t. 
Gurren,  3  Rawle,  851. 

68  Towne  v.  Wiley,  23  Vt  356. 

LAWBALLM.— 2 


tu  txrf^v-t  «^>    cx  q(rird    i^*^^ 


18  IN   GENERAL.  [Ch.   1 

infant reBudiates_th£L_CQiitract,  or-recaU»-the-aiag  bailed." "  An 
infant's  contracts  are  voidable,  not  void,  and  be  alone  can  take  ad- 
vantage of  bis  disability.®"  But  tbe  contracts  of  a  married  woman, 
where  ber  disabilities  bave  not  been  removed  by  statute,  are  wboUy 
void.  Neitbei  party  is  bound,  by  tbe  bailment  contract. °^  If  she 
delivers  property,  however,  the  other  party  must  restore  it  to  her 
husband;  and,  if  she  receives  property  under  such  a  void  bailment, 
ber  husband  must  restore  it,  if  it  is  in  his  possession.*' 

SarM — Bailment  by  Operation  of  Law. 

In  bailments  by  operation  of  law,  the  capacity  of  the  parties  is 
material  only  in  respect  to  determining  what  is  commensurate  care, 
which,  as  will  be  seen,  is  the  measure  of  the  bailee's  liability.  What 
is  commensurate  care  has  reference,  inter  alia,  to  the  capacity  and 
class  of  the  parties.  An  individual  is  held  only  to  the  exercise  of 
such  care  as  can  be  reasonably  expected  of  persons  of  the  recognized 
class  to  which  he  belongs.  Persons  deprived  of  reason,  as  very 
young  children  or  lunatics,  cannot  have  negligence  attributed  to 
them.  Persons  of  defective  capacity  or  sense  must  exercise  care 
with  reference  to  their  capacity.  Other  persons  must  exercise  tbe  care 
that  an  average  prudent  or  reasonable  man  would  exercise  under  tbe 
circumstances.®* 

Same — Agents. 

The  principles  of  agency  apply  in  questions  of  bailment  as  else- 
where, and  delivery  of  the  goods  which  are  the  subject  of  the  bail- 
ment may  be  made  by  an  agent  of  the  bailor,  and  accepted  by  an 
agent  of  the  bailee,®*  if  such  delivery  and  acceptance  are  within  the 
scope  of  their  authority,  and  their  acts  will  be  binding  on  their 
principals.®"^    Just  as  in  other  contract  relations,  tbe  principal  will  be 

»»  story,  Bailm.  §  50;   Schouler,  Bailm.  (2d  Ed.)  §  27. 

«o  Clark,  Cont.  242. 

«i  Clark,  Cont.  276. 

«2  Story,  Bailm.  §  50. 

«»  Jagg.  Torts,  pp.  162,  1G3. 

««City  Bank  v.  Perkins,  29  N.  Y.  554;  Brown  v.  Warren,  43  N.  H.  430; 
Boynton  v.  Payrow,  67  Me.  587;  McCready  v.  Uaslock,  3  Tenn.  Ch.  13;  Lloyd 
V.  Barden,  3  Strob.  Law  (S.  C.)  343. 

«o  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5;  Blake  v.  Kimball,  106  Mass.  115, 
116;   Stevens  v.  Boston  &  M.  R.  Co.,  1  Gray  (Mass.)  277;   Macklin  v.  Frazier, 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    BAILMKNTS.  19 

responsible  for  all  acts  of  agents  in  regard  to  the  goods  in  question, 
so  long  as  such  agents  are  acting,  apparently  at  least,  within  the 
bounds  of  their  authority."  Of  course,  where,  from  the  very  nature 
of  the  agent's  act,  no  authority  could  be  presumed  to  have  been 
given  him  for  its  commission,  the  fact  of  its  being  thus  wrongful 
should  serve  as  notice  that  it  is  the  act  of  the  agent  personally,  and 
not  as  acting  for  his  principal,  and  for  such  act  the  agent  alone 
would  be  liable.®^  The  important  question  here  is  whether  the  thing 
accepted  was  accepted  in  a  representative  capacity,  so  as  to  bind  the 
principal,  or  in  an  individual  capacity,  so  as  to  bind  the  agent  per- 
sonally."^    If  an  agent  acting  within  the  scope  of  his  authority  ac- 

9  Bush  (Ky.)  3;  Schouler,  Bailm.  (2d  Ed.)  §§  19,  30,  33;  Story,  Ballm.  §  55; 
First  Nat.  Bank  of  Carlisle  v.  Graham,  79  Pa.  St.  10(5.  In  the  case  of  Lloyd  v. 
Barden,  3  Strob.  Law  (S.  C.)  343,  it  was  held  that,  to  charge  a  bailee  with  an 
article  lost,  It  is  not  necessary  that,  in  every  case,  the  delivery  should  have 
been  to  him  individually,  or  to  one  expressly  or  specihcally  authorized  to  re- 
ceive for  him;  but  an  agency  to  receive  may  be  Implied  in  the  same  manner 
as  such  agency  may  be  implied  in  relation  to  articles  which  were  to  be  carried 
for  hire.  "The  master  and  owner  of  a  house  or  warehouse,  allowing  his 
servants  or  clerks  to  receive  for  custody  the  goods  of  another,  and  especially 
if  the  practice  be  general  and  unlimited,  as  is  the  case  with  banks  in  relation 
to  special  deposits,  will  be  considered  the  bailee  of  the  goods  so  received,  and 
will  incur  the  duties  and  liabilities  belonging  to  that  relation.  Not  so  if  th>^ 
servant^ secretly,  and  without  the  knowledge,  express  or  implied,  of  the  mas- 
ter,  he  not  having  authorized  or  submitted  to  the  practice,  recoives  \\i\'  jvo-u 
for  such  purpose;  for  no  man  can  be  made  the  bailee  of  another's  properly 
without  liis^  consent."  Parker,  0.  J.,  in  Foster  v.  Essex  Bank,  17  Mass.  4T'J, 
498.  And  see  Merchants'  Bauk  v.  State  Banli,  10  Wall.  G04,  (550;  Elliot  v.  Ab- 
bot, 12  N.  H.  549;  Farrar  v.  Oilman,  19  Me.  440;  McHenry  v.  lUdgely,  2 
Scam.  309;  Everett  v.  U.  S.,  G  Post.  (Ala.)  166. 

8«  See  cases  cited  in  last  note. 

«7  Schouler,  Bailm.  (2d  Ed.)  §  19;  Story,  Bailm.  §§  55,  60.  "Wherever  a  party 
undertakes  to  do  any  act  as  the  agent  of  another,  if  he  does  not  possess  any 
authority  from  the  principal  therefor,  or  if  he  exceeds  the  authority  delegated 
to  him,  he  will  be  personally  responsible  therefor  to  the  person  with  whom 
he  is  dealing  for  or  on  account  of  his  principal."  Story,  Ag.  §  264.  And  see 
Bowen  v.  Morris,  2  Taunt.  374,  385;  Polhill  v.  Walter,  3  Barn.  &  Adol.  114; 
Sumner  v.  Williams,  8  Mass.  178.  An  agent  renders  himself  personally  re- 
sponsible where  he  makes  a  contract  upon  terms  which  he  knows  he  has  no 
authority  to  agree  to,  although  the  contract  be  made  in  the  line  of  his  business 
as  agent.    Meech  v.  Smith,  7  Wend.  (N.  Y.)  315. 

68  Pattison  v.  Syracuse  Nat.  Bank,  4  Thomp.  &  C.  (N.  Y.)  96;  First  Nat. 
Bank  of  Carlisle  v.  Graham,  79  Pa.  St.  106. 


20  IN    GENERAL.  [Ch.    1 

cepts  the  bailment  on  behalf  of  his  principal,  the  principal,  and  not 
the  agent,  becomes  the  bailee,  and  no  liability  rests  upon  the  agent.** 
But,  when  the  agent  has  in  fact  no  authority  to  accept  the  bailment, 
then  he,  personally,  is  liable  as  bailee,  and  his  principal  is  not  bound/** 

Same —  Corporations. 

Corporations  may  be  bailees,  provided  the  purpose  of  the  bailment 
is  not  ultra  vires.^^  Since  a  corporation  can  act  only  through  its 
authorized  agents,  and  since  it  cannot  authorize  ultra  vires  acts, 
where  its  officers  or  agents  undertake  to  make  a  bailment  contract 
beyond  the  powers  of  the  corporation,  they,  and  not  the  corporation^ 
are  liable  as  bailees.^*     So,  corporations  may  be  bailors.^ ^ 

Title  of  Bailor. 

In  order  that  a  person  may  make  a  valid  bailment  of  a  thing,  it  Is 
not  essential  that  he  shall  have  the  absolute  title  in  it.  If  he  has  a 
special  property  therein,  or  if  he  has  possession  lawfully,  it  will  be 
sufficient.^*  Thus,  in  the  case  of  Armory  v.  Delamirie  ""^  it  appeared 
that  a  boy  found  a  jewel,  and  took  it  to  a  jeweler's  shop,  to  find  what 
it  was.  The  jeweler  refused  to  return  the  jewel,  and,  in  an  action 
in  trover,  it  was  held  that  the  finder  of  a  chattel,  though  he  does  not 
by  such  finding  acquire  an  absolute  property  or  ownership,  yet  he  has 
such  a  property  as  will  enable  him  to  keep  it  against  all  but  the  right- 
ful owner,  and  consequently  he  may  maintain  trover.  Even  in  a 
case  where  one  holds  property  without  title  and  wrongfully,  he  may .. 


•»  Stevens  v.  Boston  &  M.  R,  Co.,  1  Gray  (Mass.)  277;  Blake  v.  Kimball, 
106  Mass.  115,  116;  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5,  7;  Macklin  v. 
Frazier,  9  Bush.  (Ky.)  8. 

70  Meech  v.  Smith,  7  Wend.  (N.  Y.)  315. 

Ti  Duncomb  v.  New  York,  H.  &  N.  R.  Co.,  84  N.  Y.  190;  Baldwin  v.  Can- 
fleld,  26  Minn.  43,  1  N.  W.  261;    Lloyd  v.  West  Branch  Bank,  15  Pa.  St.  172. 

T2But  any  property  received  by  the  corporation  must  be  restored.  Dun- 
comb  V.  New  York,  H.  &  N.  R.  Co.,  84  N.  Y.  190. 

78  Combination  Trust  Co.  v.  Weed,  2  Fed.  24;  Chouteau  v.  Alien,  70  Mo.  290; 
Lehman  v.  Tallassee  Manuf  g  Co.,  64  Ala.  567. 

7*  Story,  Bailm.  §  52. 

7»  1  Strange,  505.  And  see  Kooth  v.  Wilson,  1  Bam.  &  Aid.  59.  The  finder 
ut  a  bank  note,  as  against  a  bailee  to  whom  he  delivers  it,  has  such  a  posses- 
sory interest  in  the  note  as  entitles  him  to  recover  it  from  the  bailee,  in 
the  absence  of  uny  claim  by  the  rightful  owner.  Tancil  v.  Seaton,  28  Grat 
(Va.)   601. 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    BAILMENTS.  21 

make  a  bailmpnt  of  it.  which  will  be  valid  ap^ainst  all  but  the  real 
owner.  As  between  the  parties  all  the  ri,G:hts  and  liajbiliticK  of  a 
bailment  relation  exists.''"  According  to  the  civil  law,  a  thief  mij.jht 
make  a  bailment  of  stolen  goods,  and  the  bailee  would  be  obliged  to 
restore  the  property  to  him,  save  as  against  the  owner.^^ 

Right  of  Property  in  Bailor. 

In  all  cases  of  bailments  the  right  of  property  in  the  thing  bailed 
remains  in  the  bailor.'^*  Indeed,  as  has  been  seen,  this  is  the  distin- 
guishing feature  between  bailments  and  sales.''"  The  bailor  may 
transfer  the  right  of  property,  subject  to  the  bailee's  right,  without 
the  latter's  consent;  and  notice  to  the  bailee  of  such  transfer  of  title 
is  a  sufficient  constructive  delivery  to  hold  the  pro])erty  as  against 
attaching  creditors  of  the  bailor,  or  one  claiming  as  a  bona  fide  pur- 
chaser.®"  A  bailor  may  maintain  replevin  against  any  person 
wrongfully  in  possession  of  the  subject  of  the  bailment,  whenever 
his  right  of  property  carries  with  it  the  right  of  possession,* 

T  6  Taylor  v.  Plumer,  3  Maule  &  S.  5G2;    Learned  v.  Bryant.  13  Mass.  224. 

T7  Story,  Bailm.  §§  52,  108. 

T8  Story,  Bailm.  §  93;  llenrj^  v.  Patterson,  57  Pa.  St.  34G,  352;  Pricbett 
v.  Cook,  62  Pa.  St.  193;   Powder  Co.  v.  Burkhardt,  97  U.  S.  110. 

7  9  Ante,  p.  G. 

80  El-win  V.  Arthur,  Gl  Mo.  3S6;  Gerber  v.  Monie,  56  Barb.  (N.  Y.)  652. 
Thus,  where  the  owner  of  a  lot  of  cotton  in  the  hands  of  the  surveyor  of  a 
port,  seized  by  him,  to  await  an  examination  in  regard  to  charges,  sold  the 
same,  and  gave  his  vendee  an  order  on  the  sui-veyor  for  the  cotton,  and  also 
notified  the  surveyor  of  such  sale.  It  was  held  that  such  action  on  the  part 
of  the  vendor  passed  all  his  rights  to  his  .^endee,  who  could  maintain  an  ac- 
tion of  replevin  for  the  cotton,  as  against  a  subsequent  attaching  creditor 
of  his  vendor,  whether  the  surveyor  had  consented  or  not  to  the  delivery, 
after  the  termination  of  his  own  right  of  possession.  Hodges  v.  Hurd,  47 
111.  863. 

*  Strong  V.  Adams,  30  Vt.  221.  And  sec  Burdict  v.  Murray,  8  Vt.  302;  Root 
T.  Chandler,  10  Wend.  (N.  Y.)  110;  Cannon  v.  Kinney,  3  Scam.  (111.)  9;  Long 
V.  Blod.soe,  3  J.  J.  Marsh.  307;  Overby  v.  McGee,  15  Ark.  459;  Walker  v. 
Wilkinson,  85  Ala.  725;  White  v.  Brantley,  37  Ala.  430;  Boot  v.  Chandler. 
10  Wend.  (N.  Y.)  110;  Lotan  v.  Cross,  2  Camp.  464.  Where  the  bailor  is 
entitled  to  possession  at  any  time,  he  may  maintain  trespass  against  a  third 
person  for  injury  to  the  bailed  property.  Walcot  v.  Pomeroy,  2  Pick.  (Mass.) 
121;  Bradley  v.  Davis,  14  Me.  44,  47;  Dallam  v.  Fitler,  6  Watts  &  S.  323,  325; 
Staples  V.  Smith,  48  Me.  470;  Hart  v.  Hyde,  5  Vt.  328;  Freeman  v.  Ranklus, 
21  Me.  446;    (Jauche  v.  Mayer,  27  111.  134;    Shioss  v.  Cooper,  27   Vt.   623; 


22  IN    GENERAL.  [Ch.   1 

Bailee  Estopped  to  Dispute  Bailor^  Title. 

A  bailee  is  not  permitted  to  dispute  the  title  of  his  bailor.^^  He 
cannot  affect  the  latter's  right  by  attornment  to  a  stranger,  nor  can 
he  be  converted  into  a  trustee  for  a  third  person  by  a  mere  notice 
of  his  claim.*"  A  bailee  may  show,  however,  that,  since  the  prop- 
erty was  intrusted  to  him,  the  bailor  has  assigned  it  to  another.^^  If 
legally  assigned,  and  the  bailee  has  notice  of  the  fact,  the  bailee 
must  account  to  the  assignee.**  The  rule  that  a  bailee  cannot  at- 
torn to  a  stranger  has  no  application  to  such  a  case;  the  assignee 
is  not  a  stranger.  The  estoppel  extends  only  to  a  denial  that  the 
bailor  had  title  at  the  time  he  delivered  the  goods  to  the  bailee.*' 
So  it  was  held,  in  a  case  where  the  defendant  borrowed  a  gun  from 
the  plaintiff,  and  afterwards  refused  to  return  it,  on  the  ground  that 
it  belonged  to  him,  that,  before  he  could  raise  the  question  of  title 
in  himself,  he  must  restore  possession  to  plaintiff.     A  person  claim- 

Hayward  Rubber  Co.  v.  Duncklee,  30  Vt.  29;  Holly  v.  Huggeford,  8  Pick. 
(Mass.)  73.  See  post,  p.  197.  But,  when  the  bailment  is  for  a  definite  time, 
the  bailor  cannot  maintain  trespass,  because  he  has  no  right  to  possession 
until  the  expiration  of  such  period.  Walcot  v.  Pomeroy,  2  Pick.  (Mass.)  121, 
122;  Muggridge  v.  Eveleth,  9  :Metc.  (Mass.)  233;  Lunt  v.  Brown,  13  Me.  236; 
Lewis  V.  Carsaw,  15  Pa.  St.  31;  Hume  v.  Tufts,  6  Blackf.  136;  Putnam  v.  Wy- 
ley,  8  Johns.  (N.  Y.)  432;  Bell  v.  Monahan,  Dud.  (S.  C.)  38;  McFarland  v. 
Smith,  Walk.  (Miss.)  172;  Lacoste  v.  Pipkin,  13  Smedes  &  M.  (Miss.)  589; 
Soper  V.  Sumner,  5  Vt.  274;  Clark  v.  Carlton,  1  N.  H.  110;  AVilson  v.  Martin, 
40  N.  H.  88;  Corfield  v.  Coryell,  4  Wash.  C.  C.  371,  Fed.  Cas.  No.  3,230;  Ward 
V.  McCauley,  4  Term  K.  489. 

«i  Story,  Bailm.  §  110;  Britton  v.  Aymar,  23  La.  Ann.  63,  65;  Peebles  v. 
Farrar.  73  N.  C.  342;  Foltz  v.  Stevens,  54  111.  180;  Maxwell  v.  Houston,  67 
N.  C.  305;  Thompson  v.  Williams,  1  Pac.  47;  Marvin  v.  EUwood,  11  Paige 
(N.  Y.)  365.  Where  one  borrows  property,  without  alleging  any  right  to  it, 
he  is  estopped  from  setting  up  a  claim  to  it  on  behalf  of  his  wife.  PuUiam 
V.  BurUngame,  81  Mo.  111. 

»2  Roberts  v.  Noyes,  76  Me.  590. 

•»  A  bailee  of  goods  cannot  set  up  as  a  defense  to  an  action  therefor  that 
at  the  time  he  became  bailee,  and  while  he  continued  such,  the  bailor  was 
not  the  owner;  but  he  may  show  that,  while  he  continued  such  bailee,  the 
bailor  parted  with  his  title  to  the  property.  Gerber  v.  Monie,  56  Barb.  (N.  Y.) 
652. 

•«  Roberts  v.  Noyes,  76  Me.  590;   Marvin  v.  Ellwood,  11  Paige,  365;   Smith 
r.  Hammond,  6  Sim.  10;   Exchange  Bank  v.  McLoon,  73  Me.  498. 
•»  Roberta  v.  Noyes,  70  Me.  590. 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    HAILMENTS.  23 

ing  title  to  a  chattel  cannot  obtain  possession  by  such  a  frmid,  and 
exonerate  himself  from  returning  it  by  setting  up  title  in  himself." 
A  bailee  of  property  may  recover  it  from  his  bailor,  if  he  can  show 
that  he  is  legally  entitled  to  its  possession  or  use  under  a  valid 
agreement,  although  the  latter  may  be  the  general  owner.  Such 
a  bailee  has  a  special  property  in  the  chattel,  sufficient  to  maintain 
the  action.  The  action  does  not  involve  a  denial  of  the  bailor's 
title. »" 

Exposing  Bailee  to  Danger. 

The  bailor  must  not  expose  the  bailee  to  danger  without  warning. 
He  owes  the  latter  the  duty  of  disclosing  faults  in  the  thing  bailed 
which  may  expose  the  bailee  to  uncommon  perils,  by  which  he  may 
be  injured.^®  Thus,  where  one  hires  a  horse  of  the  owner  which 
the  latter  knows  to  be  skittish  and  timid  and  apt  to  run  away,  so 
that  it  is  dangerous  to  ride  him,  it  is  the  owner's  duty  to  disclose 
such  facts;  and  if  he  fails  to  do  so,  and  the  bailee  is  thrown  from 
the  horse,  and  hurt,  the  owner  is  liable  to  him  for  the  damages."" 

Care  to  be  Exercised  by  Bailee. 

Commensurate  care,  or  due  care  under  the  circumstances,  is  the 
measure  of  the  bailee's  obligation,  in  the  absence  of  express  con- 
tract, no  matter  what  the  bailment  purpose  is.®^      In  all  ordinary 

8  8  Simpson  v.  Wrenn,  50  111.  222.  And  see  Bursley  v.  Hamilton.  15  Pick. 
(Mass.)  40,  where  it  was  held  that  an  owner  of  property  giving  a  receipt 
for  i":  to  an  officer  who  had  seized  it  under  process  could  not  set  up  title  in 
himself  when  sued  by  the  officer  without  first  restoring  the  property  to  the 
officer.     Contra,  Learned  v.  Brj-aut,  13  Mass.  224. 

8  8  Simpson  v.  Wrenn,  50  111.  222;  Burdict  v.  Murray,  3  Vt.  302, 

89  Story,  Bafim.  §§  3D0-3'Jla;  Hadley  v.  Cross.  34  Vt,  .586;  Home  v.  Moakin. 
115  Mass.  320;  Reading  v.  Price,  3  J.  J.  Marsh.  (Ky.)  01;  Kissam  v.  Jones. 
56  Hun,  432,  10  N.  Y,  Supp.  94. 

90  Story,  Bailm.  §  391a;  Campbell  v.  Page,  G7  Barb.  (.N.  Y.)  113.  And  see 
Fowler  V,  Lock,  L,  R.  7  C.  P.  272;  and  post,  pp.  88.  185, 

91  2  Jagg,  Torts,  88;  Hall  v.  Chicago,  B.  &  N.  Ry.  Co..  4(5  Minn,  439,  49 
N.  W.  239;  Meredith  v.  Reed,  2G  Ind.  3o4;  Barnum  v,  Terponuiug,  75  Mich. 
557,  42  N,  W,  907;  Grand  Trunk  Ry.  Co,  of  Canada  v,  Ives.  144  U.  S.  408, 
12  Sup,  Ct,  679;  Michigan  Cent,  R.  Co.  v,  Coleman.  28  Mich.  440;  Pennsyl- 
vania R,  Co,  V,  O'Shaughnessy.  122  Ind.  588.  23  N.  E.  G75;  Smith  v.  New  York 
Cent.  R.  Co.,  24  N.  Y.  222;  Perkins  v.  New  York  Cent.  R.  Co.,  24  N.  Y.  19G; 
McAdoo  V,  Richmond  &  D.   R.  Co.,  105  N.   C.  140.   11    S.   E.  31G;    Storer  t. 


24  IN    GENERAL.  [Ch.    1 

classes  of  bailments,  losses  occurring  without  negligence  on  the  part 
of  the  bailee  fall  upon  the  bailor.^'^  The  bailee's  liability  turns 
upon  the  presence  or  absence  of  negligence.  In  some  exceptional 
bailments,  as  in  the  case  of  carriers  or  innkeepers,  there  is  an  ex- 
ceptional liability,  approximating  that  of  an  insurer.^^  But,  gen- 
erally speaking,  there  can  be  no  recovery  against  a  bailee  for  loss  or 
damage  to  the  property,  in  the  absence  of  negligence.®* 

Lord  Holt,  in  Coggs  v.  Bernard,"®  distinguished,  as  to  bailment, 
three  grades  or  degrees  of  negligence:  Tn  bailment's  fpr  the  sole^ 
benefit  of  the  bailor,  the  bailee  will  be  Hable  only  for  gross  negli^ 
gence;  in  bailments  for  the  mutual  benefit,  of  both.  parties^^Jie_will^ 
be  liabIe^or_ordinaTy^egligencej^JiLbailments  for  the  exclusive  ad- 
v^ntage  of  the  bailee,  he  will  be  liable  even  for_slight_negligence. 
This  distinction  of  three  degrees  of  negligence  has  been  perpetuated 
in  text-books  and  decisions,  until  it  has  become  so  interwoven  in  the 
law  of  bailments  that  it  is  impossible  to  discard  it,  though  it  has 
been  frequently,  severely,  and  justly  criticised.*  It  certainly  is  mis- 
leading. Negligence  may  be  defined  generally  as  the  breach  of  a 
duty  to  exercise  commensurate  care,  resultin^r  in  damage."®     Any 

Go  wen,  18  Me.  174;  Lane  v.  Boston  &  A.  R.  Co.,  112  Mass.  455;  Hinton  v. 
Dibbin,  2  Q.  B.  646;   Wyld  v.  Pickford,  8  Mees.  &  W.  442. 

82  Wood  V.  McClure,  7  Ind.  155;  Watkins  v.  Roberts,  28  Ind.  167;  Carpenter 
V.  Branch,  13  Vt.  161,  164;  Beller  v.  Schultz,  44  Mich.  529,  7  N.  W.  225;  Cass 
V.  Boston  &  L.  R.  Co.,  14  Allen  (Mass.)  448;  Chenowith  v.  Dickinson,  8  B. 
Mon.  156,  158. 

8  3  See  post,  pp.  254,  3U1. 

9*  Abraham  v.  Nunn,  42  Ala.  51;  Yale  v.  Oliver,  21  La.  Ann.  454;  Levy  v. 
Bergeron,  20  La.  Ann.  290;  Waller  v.  Parker,  5  Cald.  (Tenn.)  476;  James  v. 
Greenwood,  20  La.  Ann.  297;  Britton  v.  Aymar,  23  La.  Ann.  63;  McGinn 
V.  Butler,  3  Iowa,  160;  Watkins  v.  Roberts,  28  Ind.  167;  Shiells  v.  Black- 
burne,  1  H.  Bl.  158. 

95  2  Ld.  Raym.  909. 

*  Degrees  of  negligence  are  not  recognized  in  some  cases.  Bigelow,  Torts, 
§  265;  First  Nat.  Bank  of  Lyons  v.  Ocean  Nat.  Bank,  60  N.  Y.  278;  Hall  v. 
Railroad  Co.,  46  Minn.  439,  49  N.  W.  239;  Gill  v.  Middleton,  105  Mass.  479; 
See,  also,  as  to  degrees  of  negligence.  The  New  World  v.  King,  16  How.  474; 
Railroad  Co.  v.  Lockwood,  17  Wall.  382;  Wilson  v.  Brett,  11  Mees.  &  W. 
113;  GrUl  v.  Iron  Screw  Collier  Co.,  L.  R.  1  C.  P.  612. 

96  2  Jagg.  Torts,  810;  City  of  Torre  Haute  v.  Hudnut,  112  Ind.  542,  13  N.  E. 
686;  Brown  v.  Railway  Co.,  49  Mich.  153,  13  N.  W.  494;  Blyth  v,  Birmingham 
Waterworks  Co.,  11  Exch.  781,  781. 


§    2]  GENERAL    PIUNCIPLES    COMMON    TO    ALL    HAHMKNTS.  25 

omission  of  such,  duty  resulting  in  damage  ought  to  impose  liability. 
There  is  no  such  thing  as  excusable  negligence.  It  is  said  that 
gross  negligence  is  "ordinary  negligence  with  a  vituperative  adjec- 
tive." *^  It  would,  perhaps,  be  more  logical  to  apply  the  adjective 
of  comparison  to  the  term  "diligence"  rather  than  to  the  correlative 
term  "negligence."  Thus,  where  the  exercise  of  great  diligence  is 
the  duty  imposed,  a  slight  omission  of  diligence — L  e.  slight  negli- 
gence— is  a  failure  to  exercise  commensurate  care.  Wliere  only 
slight  diligence  is  the  measure  of  duty,  slight  omissions  do  not  in- 
volve a  failure  to  exercise  commensurate  care,  and  therefore  there 
is  no  negligence.  In  such  a  case  it  is  very  misleading  to  say  that 
there  is  slight  negligence,  but  no  liability.  When  only  slight  dili- 
gence is  required,  there  must  be  a  gross  omission  of  diligence — an 
omission  of  almost  all  diligence — in  order  to  involve  a  failure  to  ex- 
ercise commensurate  care,  or,  in  other  words,  to  constitute  negli- 
gence; for  commensurate  care  in  such  a  case  is  slight  care.°*  Nev- 
ertheless, the  terms  "slight  negligence,"  "gross  negligence,"  and 
"ordinary  negligence"  are  convenient  terms  to  indicate  the  degree 
of  care  required.*® 

It  remains  to  show  what  is  meant  by  the  terms  "slight,"  "ordi- 
nary," and  "great  or  extraordinary^'  diligence  or  negligence, — a  task 
which  is  by  no  means  an  easy  one.  According  to  Judge  Story,^**** 
"slight  diligence  is  that  which  persons  of  less  than  common  pru- 
dence, or,  indeed,  of  any  prudence  at  all,  take  of  their  own  concema" 
By  Sir  William  Jones,^"^  slight  diligence  is  considered  to  be  "the  cx- 
«:cise  of  such  diligence  as  a  man  of  common  sense,  however  inat- 
tentive, takes  of  his  own  concerns."  It  is  probably  safe  to  say  that 
the  diligence  shown  in  their  own  affairs  by  men  careless  in  their 

»T  Rolfe,  B.,  in  Wilson  v.  Brett,  11  Mees.  &  W.  113,  115. 

9  8  The  New  World  v.  King,  16  How.  469,  474;  McAdoo  v.  Richmond  &  D. 
R.  CJo.,  105  N.  C.  140,  150,  11  S.  E.  316;  MUwaukee  &  St.  P.  Ry.  Co.  v. 
Arms,  91  U.  S.  489,  494. 

»B  "  'Gross  negligence'  is  a  CMivenient  plirase  to  express  the  idea  that  the 
degree  of  care  required  of  defendant  is  smalL"  Lord  Chelmsford  in  Ciblin 
V.  McMnllen,  L.  R.  2  P.  G.  ;:J17-M0. 

100  Story,  Bailm.  §  16.  And  see  Vaughan  t.  Menlove,  3  Ding.  N.  C  468, 
475. 

101  Jones,  Bailm.  §  8.  And  see  Tompkins  v.  Saltmarah,  14  Serg.  it  R.  (Pa^ 
275. 


26  IN    GENERAL.  [Ch.    i 

habits,  and  not  necessarily  prudent  by  nature,  but  of  ordinary  intel- 
ligence, is  slight  diligence.  Want  of  such  diligence  constitutes 
great  or  gross  negligence,  which  has  by  some  been  held  to  amount 
to  fraud,  or  to  be  evidence  thereof.^ °*  It  may  be  safely  stated, 
however,  that  gross  negligence,  except  under  unusual  circum- 
stances, is  not  equivalent  to  fraud,  nor  does  it  necessarily  raise 
a  presumption  of  fraud.^"^  Ordinarily  diligence  may  be  said  to 
be  that  displayed  in  the  management  of  their  own  affairs  by  the  av- 
erage business  ch*  professional  men,  met  with  in  daily  life, — men 
who  have  the  usual  amount  of  common  practical  sense  in  the  man- 
agement of  the  necessary  details  of  their  business,  and  who  are  en- 
dowed with  ordinary  prudence  and  foresight.  In  this  view  of  the 
question,  it  will  be  seen  that  what  constitutes  ordinary  diligence  is 
dependent  upon  and  varies  with  the  facts  of  each  case.^"*  In  the 
words  of  Judge  Story,^""^  "that  may  be  said  to  be  common  or  ordi- 
nary diligence,  in  the  sense  of  the  law,  which  men  of  common  pru- 
dence generally  exercise  about  their  own  affairs  in  the  age  and 
country  in  which  they  live."  As  defined  by  Sir  William  Jones,^*** 
it  is  *i;he  care  which  every  person  of  common  prudence,  and  ca.pable 
of  governing  a  family,  takes  of  his  own  concerns."  The  standard  of 
ordinary  diligence  must,  of  necessity,  vary  with  time  and  place, 
since  what  might  be  ordinary  diligence  at  certain  times  and  in  cer- 
tain localities  might  at  different  times  and  in  other  places  amount 
to  but  slight  diligence.  The  influence  of  custom  and  business  must 
also  be  considered  in  determining  what  is  ordinary  diligence,  as, 
in  certain  trades,  dispositions  may  be  made  of  goods  by  a  man  of 

102  story,  Bailm.  §  19;  Jones,  Bailm.  §§  8,  10,  46,  47,  119,  120;  Tudor  v. 
Lewis,  3  Mete.  (Ky.)  378. 

103  story,  Bailm.  §  19;  Mytton  v.  Cock,  2  Strange,  1099;  Batson  v.  Donovan, 
4  Barn.  &  Aid.  21;  Clarke  v.  Earnsbaw,  1  Gow,  30;  Jones  v.  Smith,  1  Hare, 
43,  71;  Wilson  v.  York  &  M.  L.  R.  Co.,  11  Gill  &  J.  (Md.)  58;  Tompkins  v. 
Saltmarsh,  14  Serg.  &  R,  275. 

104  Tanner  v.  McCraw,  20  Ala.  189;  U.  S.  v.  Yukers,  9  a  C.  A.  171,  60  Fed. 
641;  Hoffman  v.  Tuolumne  County  Water  Co.,  10  CaL  413;  Spokane  Truck  & 
Dray  Co.  v.  Hoefer,  2  Wash.  St  45,  25  Pac  1072;  Austin  &  N.  N.  R.  Co. 
V.  Beatty,  73  Tex.  592,  11  S.  W.  858;  Marsh  v.  Benton  Co.,  75  Iowa,  469,  471, 
39  N.  W.  713. 

10  5  Story,  Bailm.  §  11. 
106  Jones,  Bailm.  §  6. 


§    2]  GENERAL    PRINCIPLES    COMMON    T<)    ALL    HAILMENTS.  27 

ordinary  prudence  which  under  other  circumstances  would  certainly 
be  open  to  the  charge  of  great  'negligence.^ ''^  Moreover,  what 
would  be  the  exercise  of  ordinary  care  with  regard  to  articles  of  a 
certain  kind  might  be  far  from  such  with  regard  to  those  of  a  dif- 
ferent sort.^""  Where  one  is  wanting  in  the  exercise  of  ordinary 
care,  he  is  said  to.be  guilty  of  ordinary  negligence.^""  Great  dili- 
gence is  that  care  shown  in  the  management  of  his  own  business  by 
a  man  of  great  vigilance  and  fore.sight,  and  of  a  prudent  nature, — 
one  g^ven  to  exerting  unusual  skill  and  care  upon  his  business  af- 
fairs.^ ^°     Want  of  it  is  slight  negligence. 

Liability  under  Special  Contract. 

As  stated  in  the  black-letter  text,  the  rights  and  liabilities  of  the 
parties  are  largely  determined  by  the  special  bailment  contract  and 

lOT  Story,  Bailmu  §  12. 

108  Batson  v.  Donovan,  4  Barn.  &,  AJd.  21;  Sleat  v.  Faj:;^',  5  Kara.  &  Aid. 
342;  Nelson  v.  Macintosh,  1  Starkie,  237;  The  New  World  v.  King,  10 
How.  475;  BaJtimore  &  O.  K  Ca  v.  Schumacher,  21)  Md.  168,  175;  Sbite 
V.  Meagher,  44  Mo.  356,  363;  Tracy  v.  Wood,  3  Mason,  132,  Fed.  Cas.  No. 
14,130.  "The  value  is  an  ingredient  to  be  taken  into  consideration  upon  the 
question  of  gross  negligence;  for  that  may  be  gross  negligence  in  the  case 
of  a  parcel  of  extraordinary  value,  which,  in  the  case  of  another  parcel,  would 
not  be  so.  The  trusting  a  parcel  of  £5,000  or  £10,000  for  a  moment  out  of 
the  personal  care  and  superintendence  of  a  trustworthy  servant  would,  Lf  it 
were  stolen  during  that  interval,  be  gross  negligence;  but  the  trusting  a 
parcel  of  40s.  value  in  the  same  way  would  not."  Bayley,  J.,  In  Batson  v. 
Donovan.  4  Barn.  &  Aid.  21,  36.  The  value  of  the  property  and  the  compensa- 
tion paid  are  to  be  considered  in  determining  whether  the  proper  care  and 
skill  demanded  by  the  circumstances  were  employed.  Storer  v.  Go  wen,  18  Me. 
174;  Doorman  v.  Jenkins,  2  AdoL  &  E.  256,  29  E.  C.  L.  132;  Gibbon  v.  Payn- 
ton,  4  BtUTows,  2298;  Batson  v.  Donovan,  4  Barn.  &  Aid.  21,  6  E.  C.  L.  373; 
Nelson  v.  Macintosh,  1  Starkie,  237,  2  E.  C.  L.  96;  Phillips  v.  Earle,  S  Pick. 
(Mass.)  182. 

io«  Theft  is  not  presumptive  evidence  of  bailee's  want  of  ordinary  care. 
Mills  V.  GUbreth,  47  Me.  320. 

110  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5;  Wood  v.  McClure,  7  lud.  155; 
Bennett  v.  O'Brien,  37  111.  2.00;  Ilagobush  v.  RauUind,  78  IlL  40;  Kenu.-dy  v. 
Ashcraft,  4  Bush  (Ky.)  530;  Lane  v.  Cameron,  38  Wla  603;  Cullen  v.  Lord, 
39  Iowa,  302;  Stewart  v.  Davis,  31  Ark.  518.  Bailee  will  be  liable  for  acLs 
and  negligence  of  his  servants,  within  the  scope  of  their  authority,  as  for 
his  own.  Finucane  v.  SmaU,  1  Esp.  315;  Halty  v.  Markel,  44  IIL  225;  Sewall 
V.  Allen,  6  Wend.  335;   Smith  v.  First  Nat.  Bank,  99  Mass.  005. 


28  IN    GENERAL.  [Ch.    1 

purpose.  Bailment  contracts  are  largely  implied.  From  the  de- 
livery of  a  chattel  in  bailment,  the  law  implies  an  undertaking  on 
the  part  of  the  bailee  to  execute  the  bailment  purpose  with  due  care, 
skill,  and  fidelity.^^^  In  each  class  of  bailments  the  liability  thus 
imposed  by  law,  in  the  absence  of  express  contract,  is  different.  The 
parties  may,  however,  substitute  a  special  contract  for  this  contract 
implied  by  law.  In  such  cases  the  express  agreement  determines 
the  rights  and  liabilities  arising  from  the  bailment^ ^^  The  bailee 
may  be  relieved  of  all  liability,  or  he  may  become  an  insurer.  The 
liability  of  a  bailee,  however,  is  not  to  be  enlarged  or  restricted  by 
wwds  of  donbtful  meaning.  The  intent  to  vary  the  liability  im- 
posed by  law  most  clearly  appear.^ ^^  So,  also,  the  contract  must 
not  be  in  contravention  of  positive  law  or  public  policy,  or  it  will 
be  disregarded.  Thus,  a  bailee  cannot  contract  against  liability  for 
his  own  frand.^^*  There  would  seem  to  be  no  principle  of  law  w  hich 
would  prevent  ordinary  bailees  from  contracting  against  liability 
for  any  degree  of  negligence,  but  the  point  is  not  free  from  doubt^^° 
It  is  well  settled,  however,  that  common  carriers  cannot  contract 
against  liability  for  negligence.  Owing^b  their  exceptional  nature. 
such  contracts  are  regarded  as  against  public  policy.^ ^°  It  is  also 
suggested  that  one  ought  not  to  be  able  to  contract  so  as  to  become 
unaccountable  for  the  acts  of  his  own  agents  or  servants.^ ^' 

Bailee  mxist  Act  in  Good  Faith. 

The  bailee  must  act  in  good  faith,  and  endeavor  to  carry  out  the 
purpose  of  the  bailment.  He  is  liable  for  any  willful  wrong  or 
fraud.     He  cannot  contract  against  it     A  bailee  is,  of  course,  lia- 

111  Story,  Bailm.  §  10;  Ctonway  Bank  v.  American  Exp.  Co.,  8  Allen,  512,  516. 

112  Ames  V.  Belden,  17  Barb.  (N.  Y.)  515;  Kettle  v.  Bromsall,  Willes,  118; 
Trefftz  V.  Canelli,  L.  R.  4  P.  C.  277;  Parker  v.  Tiffany,  52  111.  28G;  Remick 
V.  Atkinson,  11  N.  H.  25G;  Vaughan  v.  Webster,  5  Har,  (DeL)  256.  But 
see,  as  to  a  carrier's  contract  to  carry  "safely,"  Austin  v.  Manchester,  S.  & 
L.  Ry.  Co.,  5  Eng.  Law  &  Eq.  329;  Sbaw  v.  York  &  N.  M,  Ry.  Co.,  13  Q.  B. 
347. 

113  TreflCtz  t.  CaneUi,  L.  R  4  P.  C.  277;   Belden  v.  Perkins,  78  IlL  449. 

11*  Wells  V.  Steam  Navigation  Co.,  8  N.  Y.  375;  Pennsylvania  R.  Co.  v.  Mc- 
Closkey's  Adm'r,  23  Pa.  St  526. 

116  See  Lancaster  County  Nat  Bank  v.  Smith,  62  Pa.  St  47. 
118  See  post  p.  413. 

117  Peek  V.  North  Staffordshire  Ry.  Co.,  10  H.  L.  Cas.  473.  494. 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    BAILMENTS.  29 

ble,  irrespective  of  negligence  or  fmud,  for  any  absolute  breach  of 
the  bailment  contract,  or  when  he  converts  the  goods  in  his  posses- 
sion to  his  own  use.  A  bailee  is  liable  for  conversion  when  he  de- 
parts from  the  bailment  purpose  or  violates  the  bailment  contract."* 
A  bailment  gives  no  implied  autliority  to  sell  or  pledge  the  goods, 
and  if  the  bailee  does  so,  without  express  authority,  he  is  liable  for 
conversion."*  So,  also,  when  he  delivers  the  goods  to  the  wrong 
party,  he  is  at  once  liable  to  the  true  owner.*'"      If  the  goods  have 

118  Martin  v.  Cuthbertson,  64  N.  C.  328;  Lane  v.  Cameron,  38  Wis.  G03; 
Cnllen  v.  Lord,  39  Iowa,  302;  Line  v.  Mills  (Ind.  App.)  39  N.  E.  870;  Fisher  v. 
Kyle,  27  Mich.  454;  Ross  v.  Southern  Cotton-OU  Co.,  41  Fed.  152;  Wintring- 
ham  V.  Uayes,  144  N.  Y.  1,  38  N.  E.  999;  Townsend  v.  Rich  (Miim.)  GO  N.  W. 
545;  Foster  v,  Essex  Bank,  17  Mass.  479;  Sodowsky's  Ex'r  v.  M'Farland,  3 
Dana  (Ky.)  204.  Demaxtd  and  refusal  to  redeliver  bailedj^nipiuli'  are  evi- 
dence  of  conversion  in  action  to  recover  it.  Pribblev^  Kent,  10  Ind.  325; 
King  V.  Bates,  57  N.  H.  446;  Farrant  v.  Thompson,  2  Dowl.  &  R.  1;  Sanborn 
V.  Colman,  6  N.  H.  14;  Sargent  v.  GUe,  8  N.  H.  325.  In  Dale  v.  BrinokorhoCf. 
7  Daly,  45,  it  was  held  that  a  gratuitous  bailee  who  sold  the  property  It  ft  with 
him  without  authority  of  the  bailor,  and  without  notice  to  him,  was  thereby 
guilty  of  conversion.  "This  was  a  conversion,  whatever  may  have  been  their 
private  intent."     See,  to  the  same  effect.  Pease  v.  Smith,  61  N.  Y.  477. 

119  Calhoun  v.  Thompson,  50  Ala.  IGG;    McMahon  v.  Sloan.  12  Pa.  St  229.       / -— ' 
231.     Bailee  irfedgin^  another's  nronerty  without  authority  is  guilty  of  con-  /*' 
version;    and  both  bailee  and  pledgee  are  liable  in  trover,  whether  pledfroe 

knew  real  staC?of  title  or  not.     Thrall  v.  Lathrop,  30  Vt  307?     bailees  tof 
si)ecial  purpose  have  no  right  to  sell  propertj'  bailed,  and,  upon  such  salf, 
bailment  is  determined,  and  real  owner  may  replevy  it  from  vendee.     Emer- 
son V.  Fisk,  6  Greenl.  (Me.)  200. 

120  Defendant  as  bailee  held  property  of  plaintiff's  under  instructions  not 
to  deliver  it  to  any  one  without  plaintiff's  written  order.     Defendant  deliv- 
ered  the  property  to  plaintiff's  wife  upon  an  order  which  proved  to  be  a         r 
forgery.     Held,  that  defendant  was  liable  for  value  of  the  property'.     Kow-  yi  /       . 
ing  v.  Mauley,  49  N.  Y.  192.     Misdelivery  of  property  by  any  bailee  to  unauJi/I^C*  ***""^ 
thorized  person  is  of  itself  conversion,  rendering  bailee  liable  In  trover,  witli- 
out  regard  to  question  of  due  care  or  degree  of  negligence.     Hall  v.  Boston 
&  W.  R.  Corp.,  14  Allen,  439.     "If  one  man,  who  is  intrusted  with  the  goo<ls! 
of  another,  put  them  into  the  liands  of  a  third  person,  contrarj-  to  orders, 
it  is  a  conversion."     Bulier,  J.,  in  Syeds  v.  Hay,  4  Term  R.  2G0.     See,  also. 
Coles  V.  Clark,  3  Gush.  (Mass.)  399;  Parker  v.  Lombard,  100  Mass.  405;  Tomb- 
ler  V.  Koelling  (Ark.)  28  S.  W.  795.     And  see  Lubbock  v.  Ingiis.  1  Starkio, 
104;    Dufour  v.  Mepham,  31  Mo.  577;    Clark  v.  Spence,  10  Watts.  ^15.  337; 
Hawkins  v.  Hoffman,  6  Hill,  588;    Lichtenhein  v.  Boston   &  P.   R.  Co.,  11 


30  IN    GENERAL.  [Ch.    1 

been  lost  or  destroyed,  or  for  any  other  reason  a  demand  would  be 

futile,  none  is  necessary.^ ^^ 

Redelivery — Negligence  Presumed  from  Loss  or  Damage. 

As  has  been  seen,  the  obligation  to  redeliver  or  deliver  over  the 
property  at  the  termination  of  the  bailment  on  demand  is  an  essen- 
tial part  of  every  bailment  contract.^ -^  If  the  bailee  fails  to  do  so, 
he  is  liable,  unless  he  can  show  that  his  inability  arises  without  fault 
on  his  part^*'  There  is  considerable  confusion  among  the  decisions 
in  regard  to  the  burden  of  proof  in  cases  where  a  bailee  is  sued  for 
a  loss  or  injury.  A  line  of  decisions  hold  that  in  cases  founded 
on  negligence  the  burden  of  proving  it  affirmatively  rests  on  the 
plaintiff  throughout,  and  that,  when  a  bailee  is  sued  for  a  negli- 
gent loss  or  injury,  mere  proof  of  the  loss  or  injury  does  not 
alone  make  a  prima  facie  case.^^*  But  the  better  opinion,  sup- 
ported by  the  weight  of  authority,  holds  that  while  the  burden 
of  proving  negligence  rests  upon  the  plaintiff,  and  does  not  shift 
throughout  the  trial,   the  burden    of  proceeding  does   shift,   and 

Gush.  70;  Heugh  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  5  Exch.  51;  Jenkins  v. 
Bacon,  111  Mass.  373;  Lancaster  County  Nat.  Bank  v.  Smith,  62  Pa.  St  47; 
American  Exp.  Co.  v.  Stack,  29  Ind.  27. 

121  Where  a  watch  given  to  a  watchmaker  to  be  repaired  is  stolen  through 
his  negligence,  no  demand  is  necessary  in  order  that  the  bailor  may  sue. 
Halyard  v.  Dechelman,  29  Mo.  4.59.  See,  also,  Phelps  v.  Bostwick,  22  Barb. 
(N.  Y.)  314;  Negus  v.  Simpson,  99  Mass.  3S8;   Cothran  v.  Moore,  1  Ala.  423. 

122  Story,  Baihn.  §§  90,  98,  341;    Schouler,  Bailm.  §§  59.  97, 159.    See  ante,  p.  11. 

123  "A  refusal  to  redeliver  the  property  bailed  on  demand  is  a  conversion, 
unless  the  defendant  can  excuse  himself  by  showing  that  the  property  was 
lost  or  destroyed,  without  any  neglect  on  his  part."  Per  curiam,  in  Vaughau 
V.  Webster,  5  Har.  (Del.j  25G.  And  see  Seevers  v.  Gabel  (Iowa)  62  N.  W. 
669;  Benje  v.  Creagh's  Adm'r,  21  Ala.  151.  Seizure  of  property  under  judi- 
cial process  will  excuse  nondelivery.  Watkins  v.  Roberts,  28  Ind-  167;  Cook 
v.  Holt,  48  N.  Y.  275;  Edson  v.  Weston,  7  Cow.  278;  Burton  v.  Wikinson, 
18  Vt.  186. 

124  2  Kent,  Comm.  (4th  Ed.)  Lect  40,  p.  587;  Adams  v.  Carlisle,  21  Pick. 
(Mass.)  146;  Harrington  v.  Snyder,  3  Barb.  (N.  Y.)  380;  Finucane  v.  Small, 
1  Esp.  315;  Butt  V.  Great  Western  R.  Co.,  11  C.  B.  140;  Smith  v.  First  Nat. 
Bunk,  99  Mass.  605;  Cross  v.  Brown,  41  N.  H.  283;  Carsley  v.  White,  21 
Pick.  254;  Brind  v.  Dale,  8  Car.  &  P.  207;  Foote  v.  Storrs,  2  Barb.  (N.  Y.) 
326;  Browne  v.  Johnson,  29  Tex.  40,  43.  This  is  the  English  rule.  Finucane 
v.  Small,  1  Esp.  315;  Cooper  v.  Barton,  3  Camp.  5,  note;  Harris  v.  Packwood, 
3  Taunt  204;   Gilbart  v.  Dale,  5  Adol.  &  E.  543. 


§    2]  GKNKliAI.    PllINCIPLES    COMMON    TO    ALL    BAII-MKNTS.  31 

that  where  the  plaiutifT  has  shown  that  the  bailee  received  the 
property  in  good  condition,  and  faihd  to  r<'turn  it,  or  returned  it 
badly  injured,  lie  has  made  out  a  prima  facie  case  of  negiij^ence.*" 
"When  he  has  shown  a  situation  which  could  not  have  been  pro- 
duced except  by  the  operation  of  abnormal  causes,  the  onus  rests 
upon  defendant  to  prove  that  the  injury  was  caused  without  his 
fault."  ^^'  "Res  ipsa  loquitur."  ^^^  Unless  the  bailee  overcomes 
this  prima  facie  case  by  showing  that  the  loss  or  damage  was  consist- 
ent with  the  absence  of  fault  on  his  part,  the  plaintiff  must  prevail. 
Where  the  bailee  makes  such  showing,  however,  as  where  he  shows 
that  the  property  was  stolen  or  injured  by  "Is  major,  the  burden 
of  proceeding  shifts  back  to  the  plaintiff,  and  he  must  show  that  the 
bailee  was  negligent  in  exposing  the  property  to  risk  of  harm,  or  in 
failing  to  avoid  the  danger  after  it  was  known."*     In  other  words, 

126  Boies  V.  Hartford  &  N.  H.  R.  Co.,  37  Gonn.  272;  Funkhouser  v.  Wagner, 
(12  lU.  G9;  Goodfellow  v.  Meegan,  32  Mo.  280,  284;  Bennett  v.  O'Brien,  37  III. 
250;  Vaughan  v.  Webster,  5  Har.  (DeL)  25G;  Safe  Deposit  Co.  of  Pittsburgh 
V.  Pollocli,  85  Pa.  St  391;  Wintringliam  v.  Hayes,  144  N.  Y.  1,  38  N.  E.  999; 
Claflin  V.  Meyer,  75  N.  Y.  2(>0;  Coleman  v.  Livingston,  3G  N.  Y.  Super.  Ct  32; 
Golden  v.  Romer,  20  Hun  (N.  Y.)  438;  McDaniels  v.  Robinson,  2U  Vt.  310; 
Wilson  v.  Southern  Pac.  R.  Co.,  62  CaL  164;  Thompson  v.  Ry.  Co.,  59  Mo. 
App.  37;  Beller  v.  Schultz,  44  Mich.  529,  7  N.  W.  225;  Beardslee  v.  Richard- 
son, 11  Wend.  25;  McCarthy  v.  Wolfe,  40  Mo.  520;  Cross  v.  Brown,  41  N.  H. 
283;   Collins  v.  Bennett,  46  N.  Y.  490;   Lamb  v.  Western  R.  Corp.,  7  Allen,  98. 

128  Ruger,  C.  J^  in  Seybolt  v.  New  York,  L.  E.  &  W.  R.  Co.,  95  N.  Y.  562, 
56&  See  Alden  v.  Pearson,  3  Gray  (Mass.)  342;  Piatt  v.  Hibbard.  7  Cow. 
(N.  Y.)  497;  Burnell  v.  New  York  Cent  It  Co.,  45  N.  Y.  1S4;  Schwerin  v.  Mc- 
Kie,  51  N,  Y.  180;  Fairfax  v.  New  York  Cent  &  H.  R.  It  Co.,  07  N.  Y.  11. 
Bailee  may  make  out  a  prima  facie  defense  by  showing  that  the  Injurj'  or  loss 
occurred  under  circumstances  not  in  themselves  Imputing  any  fault  to  him. 
Schwerin  v.  McKie,  51  N.  Y.  ISO;  First  Nat  Bank  of  Carlisle  v.  Graham,  85 
Pa.  St  91;  Cochi-an  v.  Dinsmore,  49  N.  Y.  249;  Cox  v.  O'Riley.  4  Irid.  368; 
Boies  V.  Hartford  &  N.  H.  R.  Co.,  37  Conn.  272;  Logan  v.  Mathews,  (J  Pa,  St 
417;  Tompkins  v.  Saltmarsh,  14  Serg.  &  R.  275;  Malaney  v.  Taft  00  Vt  571, 
15  Atl.  326. 

12T  Jagg.  Torts,  p.  938. 

128  Lamb  v.  Transportation  Co.,  46  N.  Y.  271.  279;  Claflin  v.  Me3-er,  75  N. 
Y.  260;  Babcock  v.  Murphy,  20  La.  Ann.  399;  McCullom  v.  Porter,  17  I^. 
Ann.  89;  Kincheloe  v.  Priest  89  Mo.  240,  1  S.  W.  235;  Farnham  v.  Cam.leu 
&  A.  R.  Co.,  55  Pa.  St  53;  Gay  v.  Bates,  99  Mass.  2G3;  Railroad  Co.  v.  Reeves. 
10  Wall.  170;  Transportation  Co.  v.  Downer.  11  Wall.  120;  Gilbart  v.  Dale, 
5  Adol.  &.  K  543,  31  E.  C.  L.  723;    Midland  R.  Co.  v.  Bromley.  17  C.  B.  372. 


32  IN    GENERAL.  [Ch.    1 

the  weight  of  evidence  may  be  in  favor  first  of  one  party  and  then  the 
other,  but  the  burden  of  proof  rests  on  plaintiff  throughout.* 

Same — To  Mliom  Made. 

Tlie  duty  to  redeljver  is  nT^fy^lntP  if  i|  ^p  within  thp  power  of  the 
bailee ;  and  therefore,  where  the  bailee  delivers  the  property  to  the 
wrong  person,  he  is  liable,  irrespective  of  the  question  of  negligenccf 
A  forged  order  will  not  protect  a  bailee  from  liability  for  a  wrong 
ddiverv-t 

The  bailment  contract  itself  usuaJly  determines  to  whom  the  prop- 
erty is  to  be  delivered  upon  the  termination  of  the  bailment.  If  it 
does  not,  the  contract  implied  by  law  is  that  it  is  to  be  delivered  to 
the  bailor.^^®  The  delivery  may  be  made  to  a  duly-authorized  agent, 
and  the  bailee  will  be  exonerated  even  if  he  did  not  know  the  agent 
had  authority  to  receive  it.^^*'  A  bailment  by  an  agent  is  a  bailment 
for  his  principal,  and  redelivery  may  be  made  to  the  principal 
direct^^^  If  the  bailor  acted  as  guardian,  executor,  administrator, 
or  trustee  in  creating  the  bailment,  and  his  authority  has  terminated, 
delivery  should  be  made  to  his  successor.^^^  On  the  same  principle, 
on  the  death  or  incapacity  of  the  bailor,  the  bailee  should  deliver  to 

*  McKelvey,  Ev.  c  4. 

t  Ganley  v.  Troy  City  Nat.  Bank,  98  N.  Y.  487;  Bank  of  Oswego  v.  Doyle, 
91  N.  Y.  32,  42;  Willard  v.  Bridge,  4  Barb.  361;  Graves  v.  Smith,  14  Wis.  5; 
Jenkins  v.  Bacon,  111  Mass.  373;  Dufour  v.  Mepliam,  31  Mo.  577;  Jefferson- 
ville  R.  Co.  V.  White,  6  Bush.  251;  Alabama  &  T.  R.  R.  Co.  v.  Kidd,  35  Ala. 
209.  But  see  Lancaster  County  Nat  Bank  v.  Smith,  02  Pa.  St  47.  In  some 
jurisdictions  the  question  of  negligence  has  been  considered  in  the  matter  of 
deUvery.  See  Manhattan  Bank  v.  Walker,  130  U.  S.  267,  9  Sup.  Ct  519; 
Lancaster  County  Nat  Bank  v.  Smith,  62  Pa.  St  47;  Heugh  v.  London  & 
N.  W.  Ry.  Co.,  L.  R,  5  Exch.  51. 

X  Kowing  V.  Manly,  49  N.  Y.  192;  Lichtenhein  v.  Railroad  Co.,  11  Cush. 
70;  HaU  V,  Boston  &  W.  R.  Co.,  14  AUen,  439;  Forsythe  v.  Walker,  9  Pa.  St. 
148;  Collins  v.  Bums,  63  N.  H.  1;  Dufour  v.  Mepham,  31  Mo.  577;  McGinn 
V.  Butler,  31  Iowa,  160;  Stephenson  v.  Price,  30  Tex.  715;  Willard  v.  Bridge, 
4  Barb.  361;   Alabama  &  T.  R.  R.  Co.  v.  Kidd,  35  Ala,  209. 

129  Pribble  v.  Kent  10  Ind.  325;  Hudmon  v.  Du  Bose,  85  Ala.  446,  5 
South.  162;  Collins  v.  Burns,  63  N.  Y.  1,  7;  WUlard  v.  Bridge,  4  Barb.  (N. 
Y.)  361,  367;  Dufour  v.  Mepham,  31  Mo.  577;  Graves  v.  Smith,  14  Wis.  5; 
Coles  V.  Clark,  3  Cush.  (Mass.)  399. 

i«o  Chattahoochee  Nat  Bank  v.  Schley,  58  Ga.  369,  374. 

151  Hamilton  v.  Nickerson,  11  Allen,  308. 

x»2  Story,  Bailm.  §  109.    And  see  Gray  v.  Johnston,  L.  B.  3  U.  L.  1. 


§    2]  GENERAL    PRINCIPLES    COMMON    TO    ALL    HAILMENTS.  33 

his  personal  representatives.  Under  many  cireurnKtances,  some- 
times from  the  very  nature  of  the  bailment,  the  bailee  must  decide 
upon  his  own  responsibility  to  whom  the  delivery  should  be  made. 
Thus,  a  depositary  who  accepts  a  deposit  to  l)e  paid  over  to  a  third 
person  on  the  happening  of  a  certain  event  must  at  his  peril  dccidf 
whether  the  event  has  happened."^  A  stakeholder  or  an  officer  li<»l<l 
ing  attached  .goods  must  decide  at  his  peril  who  is  finally  entitled  to 
them,^"  When  a  third  person  claims  title  to  the  goods  held  by  a 
bailee,  he  acts  at  his  peril  in  disregarding  the  notice  and  delivering 
to  his  bailor,^"  though,  if  he  in  good  faith  delivers  the  goods  to  his 
bailor  without  notice  of  any  adverse  claim,  he  will  be  protected."' 
For  his  own  protection,  in  such  cases,  the  bailee  may  refuse  to  deliver 
the  goods  to  the  claimant,  and  call  in  his  bailor  to  defend  against  the 
claim;  ^^^  and  he  may  compel  the  rival  claimants  to  interplead  for 
the  goods,  if  there  is  privity  between  them,  as  where  one  claims  as" 
assignee  of  the  bailor;  ^^^  but,  when  no  privity  exists,  he  cannot  com- 
pel them  to  interplead.*^' 

188  Carle  v.  Bearce,  33  Me.  337,  340;    Chase  v.  Gates,  83  Me.  303;    TreCftz 
V.  Canelll,  L.  R.  4  P.  C.  277,  282;    Lafarge  v.  Morgan,  11  Mart.  (La.)  462. 
18*  State  V.  FItzpatrick,  04  Mo.  185;    Mott  v.  Pettlt.  Coxe  (N.  J.)  298. 

186  Wilson  V.  Anderton,  1  Bam.  &  Adol.  450. 

188  Thus,  the  lessee  of  a  warehouse  received  from  the  preceding  lessee 
certain  cotton  which  the  latter  said  had  been  stored  by  H.  &  T.  The  cotton 
was  subsequently  delivered  to  H.  &  T.,  and  the  warehouseman  was  held 
not  liable  therefor  to  the  real  owner;  for  he,  being  Intrusted  with  the  pos- 
session merely,  transferred  the  possession  according  to  the  directions  of  the 
person  from  whom  he  received  it,  without  notice  of  any  better  title,  and  with- 
out undertaking  to  convey  any  title,  and  such  acts  are  not  evidence  of  a 
conversion.  Parker  v.  Lombard,  100  Mass.  405.  So,  in  Strickland  v.  Barrett, 
20  Pick.  415,  B.,  who  was  a  mortgagor  In  possession  of  certain  goods,  con- 
spired with  H.  to  remove  them  out  of  the  reach  of  the  mortgagee,  and  em- 
ployed the  defendant  to  assist  in  removing  them;  and  it  was  held  that  d»>- 
fendant  was  not  liable  in  trover,  unless  he  knew  of  the  intent  to  deprive  the 
plaintiff  of  his  property.  And  where  one  received  a  gun  as  a  pledge  from  a 
person  In  possession  of  it,  and  restored  it  to  him  before  any  demand  by  the 
owner,  this  was  not  found  to  be  a  conversion.  Leonard  v.  Tldd,  3  Mete.  (Mass.) 
6.  See,  also,  Loring  v.  Mulcahy.  3  Allen,  575.  Nelson  v.  Iverson,  17  Ala. 
216.    And  see  Brown  v.  Thayer,  12  Gray.  1. 

187  Schouler,  Bailm.  (2d  Ed.)  §  00;  Story,  Ballm.  §  111. 
18  8  Bechtel  v.  Sheaf er,  117  Pa.  St.  555,  11  Atl.  8^9. 

189  Marvin  v.  Bllwood,  11   Paige  (N.   Y.)  306;    First  Nat.  Bank  of  Mords- 

LAW  BAILM.— 8 


34  IN    GENERAL.  [Ch.    1 

It  is  doubtful  whether  a  bailee  has  a  right  to  yield  even  to  regular 
legal  proceedings  without  defending,  or  at  least  notifying  the  bailor 
of  such  proceedings.^*"  Where  the  bailee,  however,  has  surrendered 
the  property  to  the  true  owner  on  demand,  such  fact  is  a  valid  defense 
to  an  action  against  him  for  conversion.  The  rule  that  a  bailee  can- 
not set  up  the  title  of  a  third  person  as  against  his  bailor  has  no 
application  to  such  a  case.^*^  The  rule  only  applies  in  cases  where 
the  bailee  seeks  to  avail  himself  of  the  title  of  a  third  person  for  the 
purpose  of  keeping  the  property  himself  from  the  bailor,  and  to  all 
cases  where  the  bailee  has  not  yielded  to  a  paramount  title  in  an- 
other.^*^     It  does  not  apply  where  the  property  has  been  taken  from 

town  V.  Bininger,  26  N.  J.  Eq.  345;  Bartlett  v.  The  Sultan,  23  Fed.  257; 
Bechtel  v.  Sheafer,  117  Pa.  St.  555,  11  Atl.  889. 

1*0  Scranton  v.  Farmers'  &  Mechanics'  Bank  of  Rochester,  24  N.  Y.  424, 
427. 

1*1  Gerber  v.  Monie,  56  Barb.  (N.  Y.)  652.  But  he  takes  the  risk  of  showing 
that  such  person  had  a  good  title.  Foltz  v.  Stevens,  54  111.  180;  Dodge  v. 
Meyer,  61  Cal.  405;  Maxwell  v.  Houston,  67  N.  C.  305.  The  bailee  may  show 
in  defense  that  the  bailor  obtained  the  property  from  the  real  owner  feloni- 
ously or  by  fraud.  Bates  v.  Stanton.  1  Duer,  79;  King  v.  Richards,  6  Whart. 
418;  Kelly  v.  Patchell,  5  W.  Va.  585.  Where  a  bailee  is  sued  in  trover  by  the 
real  owner,  and  compelled  to  pay  the  value  of  the  goods,  he  may  assert  the 
title  thus  acquired  in  defense  to  an  action  of  his  bailor.  Cook  v.  Holt,  48 
JN\  Y.  275. 

142  Western  Transp.  Co.  v.  Barber,  56  N.  Y.  644;  Burton  v.  Wilkinson, 
18  Vt.  186;  Wallace  v.  Matthews,  39  Ga.  617;  BUven  v.  Hudson  River  R.  Co., 
36  N.  Y.  403;  King  v,  Richards,  6  Whart.  418;  Stephenson  v.  Price,  30  Tex. 
715,  717.  A  bailee  cannot,  in  an  action  brought  against  him  by  his  bailor, 
set  up  the  title  of  a  third  person,  except  by  the  authorization  of  that  person. 
Dodge  V.  Meyer,  61  Cal.  405.  A  bailee  may  not  set  up  the  claim  of  the  true 
owner  when  the  true  owner  has  abandoned  such  claim.  Betteley  v.  Reed,  3 
?Gale  &  D.  561.  Although,  in  certain  cases,  a  bailee  may  set  up  the  Jus  tertii, 
yet,  if  he  accepts  the  bailment  with  full  knowledge  of  an  adverse  claim,  he 
cannot  afterwards  set  up  the  existence  of  such  a  claim  as  against  his  bailor. 
Ex  parte  Davies,  In  re  Sadler,  19  Ch.  Div.  86.  One  borrowing  property  on 
promise  to  return  it  cannot  release  himself  from  his  promise  by  purchasing  a 
title  adverse  to  that  of  the  lender.  Nudd  v.  ^Montanye,  38  Wis.  511.  A  bailee 
Is  not  permitted  to  dispute  the  title  of  his  bailor,  but  he  may  show  that  the 
bailor  has  assigned  his  title  to  another,  since  the  property  was  intrusted  to 
him.  If  legally  assigned,  and  the  bailee  has  notice  of  the  fact,  the  bailee  must 
account  to  the  assignee.  The  rule  that  a  bailee  should  not  attorn  to  a  stran- 
ger does  not  apply;  the  assignee  is  not  a  stranger.  Roberts  r.  Noyes,  76  Me. 
£90. 


§§    3-5]  ROMAN    CLASSIFICATION.  85 

the  bailee  by  due  process  of  law.^*'  In  Biddle  v.  Bond  '**  it  was  said: 
'We  thinlj  that  the  true  ground  on  wliich  a  bailee  may  set  up  the  jus 
tertii  is  that  indicated  in  t^helbury  v.  Scotsford,'*"  viz.  that  the 
estoppel  ceases  when  the  bailment  on  which  it  is  founded  is  deter- 
mined by  what  is  equivalent  to  an  eviction  by  title  paramount.  It  is 
not  enough  that  the  bailee  has  become  aware  of  the  title  of  a  third 
person.  We  agree  in  what  is  said  in  Betteley  v.  Reed/*'  that  'to 
allow  a  depositary  of  goods  or  money,  who  has  acknowledged  the  title 
of  one  person,  to  set  up  the  title  of  another,  who  makes  no  claim 
or  has  abandoned  all  claim,  would  enable  a  depositary  to  keep  for 
himself  that  to  which  he  does  not  pretend  to  have  any  title  in  him- 
self whatsoever.'  Nor  is  it  enough  that  an  adverse  claim  is  made 
upon  him,  so  that  he  may  be  entitled  to  relief  under  an  interpleader. 
We  assent  to  what  is  said  by  Pollock,  C.  B.,  in  Thorne  v.  Tilbury,^ *^ 
that  a  bailee  can  set  up  the  title  of  another  only  'if  he  defends  upon 
the  right  and  title  and  by  the  authority  of  that  person." 

ROMAN  CLASSIFICATION. 

3.  A.ccording  to  the  classifloation  of  the  oivil  law,  bailments 

are  of  six  kinds; 

(a)  Depositum. 

(b)  Mandatum.  {Jl^*^  L-$*4.—*.-i 

(c)  Commodatum,     ^-£..A„^Ai^V.^  ,*^^  .-*^.        y^,^  /%^^  i  ^  i^%jtU  e>U^i^ 

(d)  Mutuum. 

(e)  Pignus. 

(f)  Locatio. 

4.  depositum:— A   depositum  is   a  delivery  of  goods  to 

be  kept  for  the  bailor  without  recompense  (p.  38).  J^/^^i^i 
6.  MANDATUM — A  mandatum  is  a   delivery  of  goods  to    fiLxX 
have  some   service   performed   about  them   by  the 
bailee  without  recompense  (p.  33). 

i*«Bllven  V.  Hudson  River  R.  Co.,  30  N.  Y.  403;  Burton  t.  WllklnBon,  18 
Vt  186;  Van  Winkle  v.  Steamship  Co.,  37  Barb.  (N.  Y.)  122;  WeUea  t. 
Thornton,  45  Barb.  (N.  Y.)  390;    Cook  v.  Holt,  48  N.  Y.  276. 

1**6  Best  &  S.  225,  233. 

i*»  Yelv.  (8d  Ed.,  translated)  23. 

1*8  4  Q.  B.  511,  517. 

i*T  3  Hurl.  &  N.  534,  537. 


36  IN    GENERAL.  [Cll.   1 

6.  OOMMODATUM — A   commo datum  is  a  gratuitous  loan 
^  rvt^Jt^  u^^      of  goods  to  be  temporarily  used  by  the  bailee,  and 

returned  in  specie  (p.  81). 

7.  MUTUUM — A  mutuum  is  a  delivery  of  goods,  not  to 
be  returned  in  specie,  but  to  be  replaced  by  other 
goods  of  the  same  kind.  At  common  la^w,  such  a 
transaction  is  regarded  as  a  sale  or  exchange,  and 
not  a  bailment  (p.  8). 

8.  PIGJfUS — A  pignus,  pledge,  or  pawn,  is  a  delivery  of 
d^^^^^   goods   as  security  for  some   debt  or  engagement, 

accompanied  by  a  power  of  sale  in  case  of  default 

(p.  101). 

9.  LOCATIO — ^A  locatio,  or  hiring,  is  a  bailment  for  re- 
i^  yjj^^^         ward,  and  may  be  of  four  kinds   (p.  177): 

I  (a)  Locatio  rei,  or  the  hiring  of  a  chattel  for  use. 

(b)  Iiocatio  operis  faciendi,  or  the  hiring  of  work  and 

labor, 

(c)  Locatio  custodiae,  or  the  hiring  of  care  and  services 

to  be  bestowed  on  the  thing  delivered. 

(d)  Locatio  operis  mercium  vehendarum,  or  the  hiring 

of  the  transportation  of  goods. 

The  above  classification  is  unnecessarily  refined.  The  rights  and 
liabilities  of  the  parties  to  a  bailment,  as  we  shall  see,  depend  pri- 
marily upon  which  one  is  to  receive  the  benefits  of  the  transaction.^** 
The  law  justly  imposes  a  stricter  liability  upon  one  who  is  to 
receive  the  whole  benefit  of  the  bailment  than  upon  one  who  entered 
into  it  solely  out  of  good  will,  and  for  the  accommodation  of  the 
other  party.^*'  Accordingly,  bailments  may  be  classified  with  ref- 
erence to  the  party  who  is  to  receive  the  benefit  into  three  classes, 
which  will  include  all  the  principles  of  the  law  of  bailments.  The 
various  kinds  of  bailments  in  the  Roman  classification  group  them- 
selves naturally  under  these  three  heads,  and  it  will  be  convenient 

i*«  Stoiy,  Bailm.  §  3.  i*»  Story,  Bailin,  S  10. 


§    10]  CLASSIFICATION    WITH    REFERENCE   TO    BENEFIT.  87 

to  sometimes  use  the  Roman  terms  to  indicate  Kubdivisions.     The 
classification  adopted  in  this  book,  therefore,  is  as  follows: 


CLASSIFICATION  WITH  REFERENCE  TO  BENEFIT. 

10.  The  rights  and  liabilities  of  the  parties  to  a  bailment 
depend  primarily  upon  which  party  the  bailment 
is  intended  to  benefit.  Bailments  may  therefore  be 
divided  into  three  classes: 

(a)  Bailments    for    the    bailor's    sole    benefit,    including 

(1)  Depositum,  and 

(2)  Mandatum. 

(b)  Bailments    for   the    bailee's    sole    benefit,    including 

(1)  Commodatum. 

(c)  Bailments  for  mutual  benefit,  including 

(1)  Pignus,  and  >iL:  *»'  * 

(2)  Locatio. 

Bailments  for  the  sole  benefit  of  the  bailor,  including  deposits 
and  mandates,  will  be  considered  in  chapter  2.  Bailments  for 
the  sole  benefit  of  the  bailee,  that  is,  gratuitous  loans,  will  be  con- 
sidered in  chapter  3.  Bailments  for  the  mutual  benefit  of  bailor 
and  bailee,  which  is  by  far  the  moat  important  and  numerous 
class  of  bailments,  will  occupy  the  remainder  of  the  book.  Pignus 
or  pledge,  the  first  subdivision  of  this  class,  will  be  considered 
in  chapter  4.  Locatio  or  hiring  will  be  treated  in  chapter  5. 
Innkeepers,  a  branch  of  locatio,  and  carriers  of  goods,  another 
branch  of  locatio,  including  common  carriers  and  the  post-office 
department,  will  be  treated  of  in  chaiiters  0  and  7,  respectively. 
Carriers  of  passengers  will  be  considered  in  chapter  .^.  and  actions 
against  carriers  in  chapter  9,  thus  rendering  the  treatment  of  caniers 
oomplete. 


^  X^  iu^  1  % 


38  BAILMENTS    FOR   SOLE    BENEFIT    OF    BAILOB.  [Ch.  2 

CHAPTER  n. 

BAILMENTS  FOR  SOLE  BENEFIT  OF  BAILOR. 

11.    Deposltum  and  Mandatum. 
ia-13.    Establishment  of  Relation. 

14.  Rights  and  Liabilities  of  Parties. 

(a)  Bailor  must  Indemnify  Bailee  against  Expense. 

(b)  Bailee  may  Bind  Bailor  by  Contract. 

(c)  Damage  Sustained  in  Executing  Bailment. 

(d)  Liability  for  Misfeasance  and  Nonfeasance. 

(e)  Right  of  Bailee  to  Use  Property. 

(f)  Special  Property  of  Bailee— Right  of  Action. 

(g)  Liability  for  Negligence. 

15.  Termination  of  Bailment, 
1&-17.  Redelivery. 

DEPOSITUM  AND  MANDATUM. 

11.  Bailments  for  the  sole  benefit  of  the  bailor  include 

(a)  Depositum  (p.  38),  and 

(b)  Mandatum  (p.  40). 

Where  the  subject  of  bailments  is  treated  under  the  Roman  classi- 
fication, bailments  for  the  sole  benefit  of  the  bailor  are  comprised 
in  the  two  classes  known  as  "depositum"  and  "maudatum."  ^  The 
two  classes  may  well  be  treated  together,  for  the  degree  of  diligence 
required  is  the  same  in  each  case,  the  only  substantial  differences  in 
the  rights  and  duties  of  the  parties  being  such  as  ai'e  natural  and 
obvious  in  view  of  the  difference  in  the  purpose  of  the  bailments. 

Depositum. 

A  deposit  is  defined  by  Sir  William  Jones '  as  being  a  naked  bail- 
ment of  goods,  to  be  kept  for  the  bailor  without  reward,  and  to  be 
returned  when  he  shall  require  it;  but  Judge  Story'  suggests  as  a 
correction  that  it  is  "a  bailment  of  goods  to  be  kept  by  the  bailee 

1  Story,  Ballm.  §  3.  «  Jones,  Ballm.  86. 

•  Story,  Bailm.  §  41.  Bee,  also,  Whiting  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  5 
Dak.  90,  87  N.  W.  222;    Bunnell  v.  Stern,  122  N.  Y.  539,  25  N.  E.  910. 


§11]  DEPOSITUM    AND    MANDA'lUM.  39 

without  reward,  and  delivered  according  to  the  object  or  purpose  of 
the  original  trust."  In  his  reason  for  this  amendment,  Judge  Story 
embodies  the  fact  emphasized  in  the  definition  of  bailment  as  laid 
down  in  the  first  pages  of  this  book;*  namely,  that,  on  the  termi- 
nation of  a  bailment,  the  thing  may  either  be  returned  to  the  bailor, 
or  be  delivered  over  to  some  third  party,  specified  by  the  bailor. 
The  definition  given  by  Pothier "  is  that  a  deposit  is  a  contract  by 
which  one  of  the  contracting  parties  gives  a  thing  to  another  to 
keep,  who  is  to  do  so  gratuitously,  and  obliges  himself  to  return  it 
when  he  shall  be  requested.  Ulpian  '  gives  as  a  definition:  "Depos- 
itum  est  quod  custodiendum  alicui  datum  est"  (It  is  a  deposit  be- 
cause it  is  given  to  some  one  to  keep).  There  are  various  other  defi- 
nitions of  a  deposit,  but  enough  have  been  given  to  show  the  com- 
monly accepted  ideas  as  to  the  nature  of  a  deposit,  and  also  that,  in 
the  delivery  of  a  thing  to  be  held  as  a  deposit,  there  was  no  duty 
demanded  of  the  bailee  towards  the  thing  intrusted  to  him  further 
than  that  of  keeping  for  the  bailor.'' 

In  cases  of  deposits,  the  bailor  is  usually  called  the  "depositor," 
and  the  bailee  the  "depositary."  Tlie  common  depositaries  are  find- 
ers of  lost  goods,*  receiptors,^"  and  banks  receiving  special  depos- 

*  Ante,  p.  4.  o  Poth.  TraitS  de  Depot,  note  1. 

6  Com.  Dig.  lib.  16,  tit.  3,  b.  (1);    Story,  Bailm.  §  43. 

T  Thibaud  v.  Thibaud,  1  La.  493.  A.,  as  the  agent  of  B.,  deposits  a  sum  of 
money  with  C,  with  a  request  that  he  will  keep  it  until  B.  returns  home 
(he  being  absent  at  the  time),  and  then  pay  it  to  him,  which  C.  agrees  to  do. 
Held,  that  C.  is  a  depositary,  and  not  liable  to  be  sued  for  the  money  by  B. 
until  after  a  request  to  pay  it.  Montgomery  v.  Evans,  8  Ga.  178.  If  a  per- 
son consents  that  a  deposit  of  money  shall  be  made  in  his  name  in  a  bank, 
for  the  purpose  of  accommodating  the  owner,  with  no  control  over  it  other 
than  to  draw  it  out  when  the  owner  should  direct,  he  will  not  be  held  liable 
for  its  safe-keeping.     Dustin  v.  Hodgen,  38  111.  352.  ^ 

8  Cory  V.   Little,   6  N.   H.  213;    Dougherty  v.   Posegate,  3  Iowa,  88.  JThe^^ 
finder  of  property  on  land  Is  a  bailee  thereof  without  rewarc^.     The  owner  is         .  z' 


liable  to  the  finder,  however,  for  the  necessary  expenses  of  preserving 
property  if  the  owner  reclaims  It.     Chase  v.  Corcoran,  lOG  .Mass 
the  finder  has  no  lien  for  his  expenses.     2  Bl.  Comm.  274.     lie  lias  a  lieu  for 
any  certain  reward  offered  by  the  own.ex.     Wentworth  v.  Day,  3  Mete.  (Mass.) 
352.     But  not_when  the  offer  is  merely  of  a  "liberal"  reward.     Wilson  v. 
Guyton,  8  Gill,  213. 
10  A  receiptor  is  primarily  liable  as  a  bailee  without  hire.     Thus,  in  Brown 


erving  the      / ( 
280.     But  Za*^ 


40  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

its.**  An  ordinary  deposit  of  money  in  a  banli  on  account  must  not 
be  confused  with  this  class  of  bailments.  Such  a  deposit  creates 
the  relation  of  debtor  and  creditor,  and  not  that  of  bailor  and 
bailee.^^  It  is  not  a  bailment,  for  the  identical  money  need  not  be 
returned.  Ttnt  ^herp  prqpprty  such  as  ^old^  bonds^  stocks,  or  other 
things  of  value,  or  even  money,  is  deposited  with  a  bank  on  the  un- 
derstanding that  the  identical  thing  deposited  is  to  be  returned,  it 
is  called  a  "special  deposit,"  and  constitutes  iTbaiimefltJ!! 

Mandatum.  ti 

The  second  division  of  bailments  for  the  sole  benefit  of  the  bailor 
was  known  to  the  civil  law  under  the  title  of  "mandatum,"  which 
word  was  anglicized  by  Sir  William  Jones  in  his  "Essay"  on  Bail- 
ments, and  which  has  been  subsequently  used  by  almost  all  writers 
on  the  subject,  as  a  "mandate."  ^*     Various  definitions  have  been 

V.  Cook,  9  Johns.  (N.  Y.)  361,  a  constable,  having  taken  goods  on  an  execu- 
tion against  B.,  delivered  them  to  C,  who  gave  a  receipt  for  them,  promising 
to  deliver  them  to  the  constable  on  demand.  The  constable  suffered  the  ex- 
ecution to  expire  without  making  any  demand  for  the  goods.  In  an  action 
brought  by  the  constable  against  C,  it  was  held  that  he  was  a  mere  naked 
bailee,  and  that  no  action  would  lie  against  him  until  after  a  demand  and  re- 
fusal of  the  goods.  If  a  chattel  be  taken  from  one  who  receipts  and  prom- 
ises in  writing  to  redeliver  it,  by  another  who  has  a  paramount  title,  the 
bailee  is  discharged.  Edson  v.  Weston,  7  Cow.  (N.  Y.)  278.  The  liability  of 
a  receiptor  to  a  sheriff  is  as  broad  as  his  covenant,  and  is  dischargeable  only 
by  act  of  God  or  the  public  enemy.     Cornell  v.  Dakin,  38  N.  Y.  253. 

11  See  post,  p.  47. 

12  Commercial  Bank  v.  Hughes,  17  Wend.  (N.  Y.)  94;  Carroll  v.  Cone,  40 
Barb.  (N.  Y.)  220;  Phoenix  Bank  v.  Risley,  111  U.  S.  125,  4  Sup.  Ct.  322.  "The 
primary  relation  of  a  depositor  in  a  savings  bank  to  the  corporation  is  that 
of  creditor,  and  not  that  of  a  beneficiary  of  a  trust.  The  deposit  when  made 
becomes  the  property  of  the  corporation.  The  depositor  is  a  creditor  for 
the  amount  of  the  deposit,  which  the  corporation  becomes  liable  to  pay, 
according  to  the  terms  of  the  contract  under  which  it  is  made."  Andrews, 
J.,  in  People  v.  Mechanics'  &  Traders'  Sav.  Inst.,  92  N.  Y.  7,  9.  And  see 
Chapman  v.  White,  6  N.  Y.  412,  417. 

18  Foster  v.  Essex  Bank,  17  Mass.  479;  First  Nat.  Bank  v.  Graham,  79  Pa. 
St.  106;  Scott  V.  National  Bank  of  Chester  Valley,  72  Pa.  St.  471;  First  Nat 
Bank  v.  Ocean  Nat.  Bank,  GO  N.  Y.  278. 

1*  Jones,  Bailm.  52.  The  term  "mandate"  Is  sometimes  used  in  a  sense 
not  denoting  a  bailment  relation  at  all.  "The  Roman  mandate  In  fact — a 
term  apparently  derived  from  the  fiction  of  giving  one's  right  hand  as  sym- 


§11]  DEPOSITUM    AND    MANDATUM.  41 

given  of  this  species  of  bailment  by  different  writers,  among  the 
most  prominent  of  which  is  that  orij^inated  by  Lord  Holt  in  the  c^se 
of  Coggs  V.  Bernard,^"  in  which  a  mandate  is  stated  by  him  to  be 
"a  delivery  of  goods  or  chattels  to  somebody  who  is  to  carry  them 
or  do  some  act  about  them  gratis,  without  any  reward  for  snch  work 
or  carriage."  This  definition  is  practically  adopted  by  Sir  William 
Jones^'  when  he  says  that  a  mandate  is  a  bailment  of  goods  with- 
out reward,  to  be  carried  from  place  to  place,  or  to  have  some  act 
performed  about  them.  According  to  Kent,^^  "a  mandate  is  when 
one  undertakes,  without  recompense,  to  do  some  act  for  another,  in 
respect  to  the  thing  bailed." 

Deposii  and  Mandate  Distinguished. 

While  closely  allied,  there  was  yet,  according  to  the  majority  of 
writers,  an  important  distinction  between  a  mandate  and  a  deposit, 
as  to  their  respective  purposes.      This,  according  to  Sir  William 

bolical  of  grving  to  another  authority  to  act— meant  In  the  vernacular  simply 
to  constitute  a  gratuitous  agency.  A  wide,  sweeping  class  of  trusts  was  this, 
not  confined  to  personalty,  nor  to  things  specific  as  distinguishable  from 
property  in  the  mass,  nor  necessarily  occupied  with  property  at  alL  An  un- 
paid carrier  was  for  the  time  being  a  mandatary;  but  so,  too,  was  an  unpaid 
oral  messenger  or  a  naked  attorney."  Schouler,  Bailm.  p.  30.  At  dvil  law 
and  under  the  Louisiana  code  such  a  mandate  was  not  necessarily  gratuitouis. 
Schouler,  Bailm.  p.  30.  See  Waterman  v.  Gibson,  5  La.  Ann.  672;  Lafourche 
&  T.  Nav.  C5o.  v.  Collins,  12  La.  Ann.  119.  With  mandates  of  this  class  we 
are  not  specially  concerned,  though  many  of  the  principles  applicable  to  bail- 
ments are  also  applicable  here. 

16  2  Ld.  Raym.  909.     And  see  Conner  v.  Winton,  8  Ind.  315. 

18  Jones,  Bailm.  117. 

IT  2  Kent,  Comm.  (12th  EkL)  568.  A  mandate  is  a  contract  by  which  one 
commits  a  lawful  business  to  the  management  of  another  who  undertakes 
to  perform  the  service  gratuitously.  Richardson  v.  I''utrell,  42  Miss.  525; 
McCauley  v.  Davidson,  10  Minn.  118,  421  (Gil.  335);  Eddy  v.  Livingston,  35 
Mo.  487,  492;  Bronnenburg  v.  Charman,  80  Ind.  475,  477.  Where  one  carried 
gold  dust  as  a  favor  from  California  to  New  Orleans,  to  be  delivered  to  a 
third  person,  and  the  mandator  gave  the  mandatary  the  privilege  of  convert- 
ing the  gold  dust  into  coin,  such  a  conferring  of  power  did  not  change  the 
relationship  of  bailor  and  bailee  into  that  of  debtor  and  creditor.  Goodenow 
V.  Snyder,  3  G.  Greene  (Iowa)  599.  Delivery  of  a  horse  to  a  farrier,  who 
gratuitously  offers  to  cure  him,  is  bailment  of  the  horse,  and  the  farrier  be- 
comes a  mandatary.     Cormer  v.  Winton,  8  Ind.  313. 


42  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

Jones,^*  was  the  fact  that  a  mandate  lay  in  feasance,  and  a  deposit 
merely  in  custody.  Judge  Story,^^  in  a  very  clear  and  able  manner, 
points  out  the  fact  that  the  existence  of  this  distinction  is  exceed- 
ingly doubtful.  'Hn  cases  of  deposit,"  says  he,  "something  almost 
always  remains  to  be  done,  besides  a  mere  passive  custody.  If  the 
deposit  is  perishable,  labor  must  be  performed  to  keep  it  in  proper 
order.  If  it  is  a  living  animal,  as  a  horse,  suitable  food  and  ex- 
ercise must  be  given  to  it.  In  the  next  place,  in  mandates  there  is 
commonly  custody;  the  possession  of  the  thing  being  generally  in- 
dispensable to  the  performance  of  the  act  intended  by  the  parties, 
so  that  in  each  contract  there  is  custody,  and  labor  and  service  to 
be  performed.  Thetame  distinction  between  them  is  that  in  the 
case  of  a  deposit  the  principal  obiect  of  the  parties  is  the  custody  of 
the  thing,  and  the  service  and  labor  are  merely  accessorial;  in  tke 
case  of  a  mandate,  the  labor  and  service  are  the  principal  objects 
of  the  parties,  and  the  custody  of  the  thing  is  merely  accessorial." 

The  meaning  of  the  terms  "depositum"  and  "mandatum,"  as  used 
in  modern  works  on  bailments,  is  not  wholly  synonymous  with  their 
meaning  in  the  old  civil  law;  and  Mr.  Schouler  ^°  regards  the  ter^ns 
as  so  permanently  associated  with  the  meaning  attached  to  them 
in  the  civil  law  as  to  be  rather  misleading  than  otherwise. 

ESTABLISHMENT  OF  RELATION. 

12.  Bailments  for   the   sole   benefit   of  the   bailor  may  be 

created 

(a)  By  contract  (p.  42),  or 

(b)  By  operation  of  law  (p.  43). 

13.  In  addition  to  the  elements  common  to  all  bailments, 

the  absence  of  intended  compensation  to  the  bailee 
is  essential  to  the  creation  of  a  bailment  of  this  class 
(p.  44). 

By  Contract. 

Bailments  for  the  sole  benefit  of  the  bailor  are  perhaps  usually 
created  by  express  contract.     The  bailee  usually  expressly  agrees 

Jt8  Jones,  Bailm.  53.  i»  Story,  Bailm.  §  140.  »o  Schouler,  Bailm.  §  26. 


§§    12-13]  ESTABLISHMENT    OF    RELATION.  43 

to  keep  the  thing  deposited,  or  to  transport  or  repair  it,  as  the  case 
may  be.^^  When  the  bailment  is  thus  created  by  express  contract, 
the  ordinary  rules  as  to  parties  capable  of  contracting  apply.  In- 
fants, married  women,  and  persons  non  compos  mentis  cannot  make 
themselves  liable  on  a  bailment  contract,**  though  where  actual 
possession  of  the  goods  is  acquired  the  law  imposes  certain  obliga- 
tions independent  of  the  contract*'  Where  the  bailment  is  made 
through  agents,  such  agents  must  have  authority  to  bind  their  prin- 
cipals.'* If  the  contract  is  with  a  corporation,  the  transaction  must 
not  be  ultra  vires.*' 
By  Operation  of  Law. 

It  has  been  seen  that  bailments  may  be  created  by  operation  of 
law,  independently  of  any  express  contract  between  the  parties.*' 
Bailments  of  this  class  are  called  quasi  or  constructive  bailments. 
They  are  created  by  law,  usually  for  the  sole  benefit  of  the  bailor, 
and  in  such  cases  are  substantially  deposits.  If  the  law,  however, 
awards  the  bailee  compensation,  as  in  the  case  of  salvage  for  prop- 
erty saved  at  sea,  the  bailment  is  one  for  mutual  benefit,  and  is  a 
locatio  or  hiring.*'^  As  has  been  seen,  the  law  will  not  impose  the 
liabilities  of  a  bailee  on  one  unless  he  voluntarily  accepts  possession 
of  the  goods.  No  man  can  be  made  a  bailee  of  another's  property 
without  his  consent  The  finder  of  goods  lost  is  under  no  obliga- 
tion to  take  them  into  his  custody;  but  if  he  voluntarily  assumes  the 
care  of  them,  he  is  burdened  with  the  liabilities  of  a  depositary.** 
The  liability  of  the  bailee  in  quasi  or  constructive  bailments  is  im- 
posed by  operation  of  law  and  not  by  contract,  and  therefore  the 
capacity  of  the  parties  is  immaterial  except  in  its  effect  upon  the 
question  of  what  constitutes  due  care.  Due  care  has  reference, 
inter  alia,  to  the  capacity  and  class  of  the  parties.*' 

21  Lethbridge  v.  Phillips,  2  Starkle,  544;   Foster  v.  Bank,  17  Mass.  478. 

22  Ante,  p.  16. 

23  Mills  V,  Graham,  1  Bos.  &  P.  140.    And  see  Towue  v.  Wiley,  23  Vt.  355. 

24  See  ante,  p.  18. 
2  5  See  ante,  p.  20. 
2  6  Ante,  p.  18. 

2  7  Post,  p.  177. 

28  Dougherty  v.  Posegate,  3  Iowa,  88.    And  S(>o  ante.  p.  13. 

2  9  2  .Tag.  Torts.  826. 


44  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

Same — Involuntary  Deposits. 

There  is  another  class  of  bailments  by  operation  of  law  which 
Story  aptly  calls  "involuntary  deposits."  These  arise  whenever  the 
goods  of  one  person  have  by  an  unavoidable  casualty  or  accident 
been  lodged  upon  another's  land,  as  where  lumber  floating  in  a  river 
is  cast  upon  a  neighbor's  land  by  a  sudden  freshet  and  left  there, 
or  where  goods  are  blown  upon  another's  land  by  a  tempest.^"  The 
rights  and  liabilities  of  the  parties  in  this  class  of  cases  are  not  very 
well  settled.  But  it  would  seem  that  the  owner  of  the  land  is  a 
(}uasi  bailee  with  liabilities  similar  to  those  of  a  finder  of  lost  prop- 
erty. If  he  should  refuse  to  deliver  the  goods  to  their  owner  or  to 
permit  him  to  remove  them,  he  might  be  held  liable  for  conversion.''^ 
So,  also,  the  owner  might  enter  and  take  them  away,  the  entry  being 
authorized  by  necessity,^ ^  But  if  goods  are  cast  upon  another's 
land,  through  the  negligence  or  wrong  of  their  owner,  he  is  liable 
for  trespass,  and  has  no  right  to  enter  to  remove  them.^^  So,  also, 
it  would  seem  that  he  should  be  liable  in  trespass  if  he  fails  to 
remove  his  goods  after  due  notice,  though  they  were  cast  there  orig- 
inally without  his  fault. 

Absence  of  Intended  Compensation. 

In  this  class  of  bailments  it  is  of  the  very  essence  of  the  con- 
tract that  the  proposed  custody  or  services  be  gratuitous.'*  A 
person  becomes  a  bailee  for  hire  when  he  takes  property  into  his 
care  and  custody  for  a  compensation.  The  nature  and  amount  of 
the  compensation  are  immaterial.' °     The  law  will  not  inquire  into 

80  Anthony  v.  Haney,  8  Bing.  186;  Mitten  v.  Paudrye,  Poph.  161  (same 
case  as  Millen  v.  Hawery,  Latch,  13);   Nicholson  v.  Chapman,  2  H.  Bl.  254. 

81  Nicholson  v.  Chapman,  supra;  Anthony  v.  Haney,  supra;  Read  v.  Smith, 
2  N.  B.  288, 

3  2  Mitten  v.  Faudrye,  Poph.  161,  Latch,  13. 

83  Anthony  v.  Haney,  8  Bing.  186.    And  see  Jag.  Torts,  149. 

8*  Wilson  V.  Wilson,  16  La.  Ann.  155;  Lafourche  «&  T.  Nav.  Co.  v.  Collins. 
12  La,  Ann.  119;  Mariner  v.  Smith,  5  Heisk.  (Tenn.)  203;  Pattison  v.  Bank, 
4  Thomp.  &  C.  (N.  Y.)  96;  Lobenstein  v.  Pritchett,  8  Kan.  213.  But  see 
Waterman  v.  Gibson,  5  La.  Ann.  672.  A  mandatary  cannot  recover  on  a 
quantum  meruit,     Wilson  v.  Wilson,  16  La.  Ann.  155. 

8  5  If  there  be  compensation,  express  or  implied,  certain  or  uncertain  in 
amount,  the  contract  is  a  contract  for  hire.  Newhall  v.  Paige,  10  Gray 
(Mass.)  3G6;    Ouderkirk  v.  Central  Nat  Bank  (Sup.)  4  N.  Y.  Supp.  734;    Hot 


§§    12-13]  ESTABLISHMENT    OF    RELATION.  45 

its  sufficiency,  or  the  certainty  of  its  beiu*,^  realized  by  the  bailee. 
The  real  question  is,  was  the  contract  made  for  a  consideration? 
If  so,  then  it  is  a  locatio,  and  not  a  depositum  or  mandatura,  and  the 
bailee  is  liable  for  a  want  of  the  ordinary  care  demanded  from 
bailees  for  hire.  The  general  rules  as  to  the  consideration  of  a 
contract  are  well  understood,  and  are  the  same  in  the  case  of  bail- 
ments as  in  all  other  contracts.  The  law  does  not  attempt  to 
determine  the  adequacy  of  a  consideration.  That  is  left  to  the 
parties,  who  are  the  sole  judges  of  the  benefits  or  advantages  to  be 
derived  from  their  contracts.  It  is  sufficient  if  the  consideration 
be  of  some  value,  though  slight,  or  of  a  nature  which  may  inure 
to  tlie  benefit  of  the  party  maJdng  the  promise.  A  mere  continL^-nt 
benefit  is  sufficient  t<;>  yinke  a  bailment  one  for  hire.  When  such  a 
consideration  exists,  a  contract  cannot  be  said  to  be  nudum  pactum, 
nor  a  bailment  a  gratuitous  undertaking.'® 

The  intent  of  the  partis  is  of  course  the  important  thing.  This 
is  a  question  of  fact,  to  be  determined  in  view  of  all  the  circum- 
stances.^^ Where  a  person  has  acted  as  bailee  in  a  matter  not  with- 
in the  scope  of  his  ordinary  occupation,  it  is  incumbent  upon  the 
bailor  who  seeks  to  render  him  liable  for  negligence  as  a  bailee  for 
hire  to  prove  that  he  was  to  receive  a  compensation.'^®  But  where 
the  bailment  was  in  the  line  of  the  bailee's  business,  for  which  he 
regularly  received  compensation,  his  right  to  compensation  will 
be  implied,  and  the  bailment  will  be  for  mutual  benefit,  though 
nothing  was  said  as  to  a  charge  for  services.^"     The  bailee,  when 

lister  V.  Central  Nat  Bank  (Snp.)  4  N.  Y.  Supp.  737;  Keller  v.  Rhoads,  39 
Pa.  SL  513;  Gray  v.  Merriam,  148  lU.  179,  35  N.  E.  810.  Bnt  see  Gomp  v. 
Bank,  M  Pa.  St.  409. 

8«  NewhaU  v.  Paige,  10  Gray  (Mass.)  3G6.  And  sec  Chainhcrlin  v.  Cobb.  3'J 
Iowa,  IGl;    I^Yancis  v.  Slirader,  G7  111.  272;    White  v.  Humphery,  11  Q.  B.  43. 

3  7  Lobensteln  v.  Pritchett,  8  Kan.  213;  Mariner  v.  Smith,  5  Helsk.  (Tenn.) 
203;  Pattison  v.  Syracuse  Nat  Bank,  4  Thomp.  &  C.  (N.  Y.)  96;  Klnchelo 
V.  Priest,  89  Mo.  240,  1  S.  W.  235. 

8  8  Dart  V.  Lowe,  5  Ind.  131. 

«»  Pattison  v.  Bank,  4  Thomp.  &  C.  (N.  Y.)  96;  Klrtland  v.  Montgomery. 
1  Swan  (Tenn.)  452;  Second  Nat  Bank  v.  Ocean  Nat  Bank,  11  Blatchf.  362, 
Fed.  Cas.  No.  12,602;  Rea  v.  Trotter.  26  Grat.  585.  If  a  package  contain- 
ing money  be  handed  to  the  captain  of  a  steamboat  which  Is  in  the  habit  of 
charging  freight  for  carrying  remittances  of  money,  without  Informing  him  of 


46  BAILMENTS    FOR   SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

sued  by  the  bailor  for  negligence,  cannot  set  up  a  mental  reservation 
not  to  charge  for  his  services,  and  thus  relieve  himself  of  the  duty 
of  exercising  ordinary  diligence,*"  All  attendant  circumstances  cal- 
culated to  throw  light  on  the  real  intent  of  the  parties  should  be 
given  due  weight  It  is  more  probable,  for  instance,  that  a  relative 
or  personal  friend  would  do  another  a  favor  gratuitously,  than  that 
a  stranger  would  do  so.  Where  but  little  time,  skill,  and  trouble 
are  involved,  one  might  undertake  a  commission  without  reward 
which  he  would  not  do  if  the  labor  were  considerable.** 
General  Requisites. 

The  only  characteristic  feature  of  bailments  for  the  sole  benefit 
of  the  bailor  is  the  entire  absence  of  any  compensation  to  the  bailee. 
This  serves  to  fix  the  standard  of  his  liability  at  slight  diligence; 
for,  as  has  been  seen,  the  measure  of  diligence  required  of  bailees 
varies  with  the  presence  or  absence  of  compensation.*^  In  all 
other  respects,  the  principles  governing  the  formation  of  bailments 
of  this  class  are  common  to  all  other  classes  of  bailments.  Thus, 
the  subject-matter  of  the  bailment  must  be  personalty,  either  cor- 
poreal or  incorporeal.*^  So,  also,  there  must  be  an  actual  or  con- 
structive delivery  of  the  property,  and  a  voluntary  acceptance  by 
the  bailee.**     The  delivery  is  the  inception  of  the  bailment      The 

its  contents,  and  the  package  is  lost,  the  owners  of  the  vessel  are  not  liable. 
Mechanics'  &  Traders'  Bank  v.  Gordon,  5  La.  Ann.  604.  Public  officers  who 
receive  property  in  the  course  of  their  officiaJ  duty  are  held  to  be  bailees  for 
hire.  Aurentz  v.  Porter,  56  Pa.  SL  115;  Browning  v.  Hanford,  5  Denio  (N. 
Y.)  586;  Witowski  v.  Brennan,  41  N.  Y.  Super.  Ct.  Rep.  284;  Moore  v.  Wes- 
tervelt,  27  N.  Y.  234;    Wood  v.  Bodine,  32  Hun,  354. 

*o  Second  Nat.  Bank  v.  Ocean  Nat  Bank,  11  Blatehf.  362,  Fed.  Cas.  No. 
12,602;    Kirtland  v.  Montgomery,  1  Swan  (Tenn.)  452. 

*i  Dart  V.  Lowe,  5  Ind.  131;  Lafourche  &  T.  Nav.  Co.  v.  Ck>llins,  12  La.  Ann. 
119.  A  mere  volunteer,  under  no  legal  obligation  to  take  and  store  goods, 
who  accepts  the  temporary  custody  of  them  without  any  agreement  on  the 
subject,  has  no  lien  on  them  for  storage.  Kivara  v.  Ghio,  3  £1.  D.  Smith  (N. 
Y.)  264. 

4  2  Ante,  p.  23. 

4  3  Story,  Bailm,  §  51;  ante,  p.  10. 

**  Belmont  Coal  Co.  v.  Richter,  31  W.  Va.  858,  8  S.  E.  609.  But  see  Scher- 
mer  v.  Neurath,  54  Md.  491.  "The  master  and  owner  of  a  house  or  ware- 
house, allowing  his  servants  or  clerks  to  receive  for  custody  the  goods  of 
another,  and  especially  if  the  practice  be  general  and  unlimited,  as  is  the 


§§    1L'-J3]  ESTAIU.ISIIMENT    OK    RELATION'.  47 

rights  and  liabilities  of  the  parties  become  fixed  immediately  upon 
the  delivery  and  acceptanca  The  intention  of  the  partii'S  at  that 
time  controls  the  chai-acter  of  the  bailment."  It  is  not  essential  that 
a  bailor  should  have  an  absolute  title  in  the  thing  in  order  to  make 
a  valid  bailment  for  his  own  benefit.  A  special  property  in  it,  or 
even  the  bare  possession  of  it,  is  sufficient-*'  A  person  who  holds 
property  by  a  wrong,  and  without  title,  may  lawfully  deposit  it, 
and  will  be  entitled  to  recover  it  back,  as  against  every  one  but 
the  rightful  owner.  As  between  the  parties,  all  the  rights  anc' 
liabilities  incident  to  a  bailment  relation  exisL*^ 

Special  Bank  Deposits. 

Special  bank  deposits  constitute,  perhaps,  the  most  important 
kind  of  bailment  for  the  bailor's  sole  benefit  The  deposit  of  gold, 
stocks,  bonds,  or  other  things  of  value  with  a  bank,  with  the  under- 
standing that  the  identical  thing  shall  be  returned,  is  of  common 
occurrenca     The  transaction  constitutes  a  bailment.*'      Foster  v. 

case  with  banks  in  relation  to  special  deposits,  will  be  considered  the  bailee 
of  the  goods  so  received,  and  will  incur  the  duties  and  liabilities  belongin;: 
to  that  relation.  Not  so  if  the  servant,  secretly  and  without  the  knowledge, 
express  or  implied,  of  the  master,  he  not  having  authorized  or  submitted  to 
the  practice,  receives  the  goods  for  such  purpose;  for  no  man  can  be  made 
the  bailee  of  another's  property  without  his  consent."  Foster  v.  Essex  Banlc, 
17  Mass.  479.  In  Pattison  v.  Syracuse  Nat.  Bank,  4  Thomp.  &  a  (N.  Y.)  9":. 
which  was  an  action  to  recover  certain  bonds  which  were  stolen  from  the 
bank  where  they  had  been  deposited  by  the  plaintiff  for  safe-keeping,  It  was 
neld  that  the  question  as  to  whether  the  teller  who  received  the  bonds  did 
so  in  an  official  or  personal  capacity  was  a  question  for  the  jury.  In  First 
Nat.  Bank  of  Carlisle  v.  Graham,  79  Pa.  St  lOG,  which  was  an  action  of  as- 
sumpsit to  recover  the  value  of  certain  bonds  left  by  the  plaintiff  with  the 
bank  for  safe-keeping,  it  was  held  by  the  court  that  **the  mere  voluntary  act 
of  the  cashier  in  receiving  the  plaintiffs  securities  would  not  subject  the  bank 
to  liability.  But  if  the  deposit  was  known  to  the  directors,  and  they  ac- 
quiesced in  Its  retention,  a  contract  relation  was  created  by  which  the  de- 
fendants should  be  held  bound." 

♦  B  Rutgers  v.  Lucet,  2  Johns.  Cas.  (N.  Y.)  92. 

*«  Armory  v.  Delamirie,  1  Strange,  505;   Booth  v.  Wilson,  1  Bam.  A  Aid.  59. 

*7  Tancil  v.  Seaton,  28  GraL  (Va.)  601. 

<8  Smith  V.  Banlc,  99  Mass.  G05;  First  Nat  Bank  of  Carlisle  v.  Graham.  79 
Pa.  St.  lOG;  First  Nat  Bank  v.  Rex,  89  Pa.  St  308;  Lancaster  Co.  Nat  Bank 
V.  Smith,  62  Pa.  St.  47;  Scott  v.  Bank,  72  Pa,  St  471;  De  Haven  v.  Kensing- 
ton, 81  Pa.  St  95;   Dearborn  v.  Bank,  01  Me.  369;    Maury  v.  Coyle.  34  Md. 


48  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

Essex  Bank  *®  is  the  leading  case  on  this  subject.  In  that  case,  gold 
which  had  been  left  at  the  bank  in  several  bags  as  a  special  deposit 
for  safe-keeping  was  stolen  by  the  cashier.  It  was  held  in  an 
action  against  the  bank  that  the  bank  was  not  liable  for  the  loss 
of  the  gold.  The  following  principles  were  laid  down:  Corpora- 
tions doing  a  genei^l  banking  business  have  an  implied  power  to 
receive  special  deposits  for  safe-keeping.  The  cashier  cannot  bind 
the  bank  by  receiving  such  special  deposits  without  authority,  ex- 
press or  implied,  to  do  so;  ^°  but  such  authority  may  be  implied 
where  the  cashier  has  been  in  the  habit  of  receiving  such  deposits, 
and  the  directors,  knowing  of  such  custom,  allow  it  to  continue.^^ 
Where  such  deposits  are  regularly  received,  the  bank,  and  not  its 
oflScers,  is  the  bailee.  The  bank  is  liable  for  the  loss  of  such  de 
posits  through  the  negligence  of  its  agents,  but  not  for  a  loss 
through  the  fraudulent  or  felonious  acts  of  its  agents.^* 

235.  In  the  absence  of  any  explanatory  evidence,  an  instrument  signed  by 
a  depositary,  by  wtLich  he  acknowledges  that  a  third  person  has  deposited 
with  him  for  "safe-keeping"  a  certain  number  of  dollars  in  gold  coin,  which 
depositary  is  to  "return  whenever  called  for,"  will  be  held  a  special  deposit. 
Wright  V.  Paine,  62  Ala.  340.  By  a  subsequent  contract  a  special  deposit 
may  be  turned  into  a  general  one.  Chiles  v.  Garrison,  32  Mo.  475.  An  agree- 
ment that  the  depositary  shaU  pay  interest  on  the  deposit  makes  the  trans- 
action of  si)ecial  deposit  one  of  open  account  Howard  v.  Roeben,  33  CaL 
399. 

*8  17  Mass.  497. 

6  0  Lloyd  V.  Bank,  15  Pa.  St  172;    First  Nat  Bank  v.  Ocean  Nat  Bank,  60 
N.  Y.  278;    Chattahoochee  Nat  Bank  v.  Schley,  58  Ga.  369. 

61  First  Nat  Bank  v.  Graham,  79  Pa.  St  106;  Chattahoochee  Nat  Bank  v. 
Schley,  58  Ga.  369. 

52  See  ante,  p.  18.  The  doctrine  of  Foster  v.  Essex  Bank  was  criticised  in 
Preston  v.  Prather,  137  U.  S.  604,  11  Sup.  Ct  162.  The  court,  in  speaking  of 
thefts  by  bank  employes  of  special  deposits  made  in  the  bank,  said:  "The 
doctrine  of  exemption  from  liability  in  such  cases  was  at  one  time  carried 
so  far  as  to  shield  the  bailees  from  the  fraudulent  acts  of  their  own  officers 
and  employes,  although  their  employment  embraced  a  supervision  of  the 
property,  such  acts  not  being  deemed  within  the  scope  of  their  employment" 
And  the  court  held  the  bank  liable  for  a  special  deposit  of  bonds  stolen  by 
the  assistant  cashier,  who  was  to  the  knowledge  of  the  management  specu- 
lating on  the  board  of  trade,  and  whose  accounts  with  the  bank  the  directors  in- 
vestigated at  the  same  time,  leaving  the  special  deposits  unexamined.  And 
that  case  was  followed  in  Gray  v.  Merriam,  148  IlL  179,  35  N.  B.  810.     And 


§§    12-13]  ESTABLISHMENT    OF    UEI.ATION.  19 

These  principles  have  become  well  established.  It  is  safe  to 
say  that  the  reception  of  special  deposits  is  outside  of  a  bank's  or- 
dinary course  of  business,  and  it  is  not  within  the  scope  of  the 
general  powers  or  apparent  authority  of  its  executive  or  ministerial 
officers  to  bind  the  corporation  by  a  contract  for  such  a  bailment. 
In  the  absence,  therefore,  of  proof  that  special  authority  has  been 
delegated  by  its  board  of  directors,  or  has  been  exercised  with  their 
sanction  or  knowledge,  or  of  evidence  that  it  had  been  the  habit 
and  practice  of  the  corporation  to  receive  property  for  safe-keeping, 
it  is  not  responsible  for  property  so  received  by  its  cashier. "^^  Nei- 
ther a  corporation  nor  an  individual  is  responsible  for  neglect  in 
protecting  property  of  which  he  or  it  has  not  assumed  the  custody  or 
any  relation  of  duty  or  trust  in  regard  to.°* 

Same — National  Banks. 

It  was  at  one  time  doubted  whether  national  banks  organized  un- 
der the  national  banking  act  had  the  power  to  receive  special  de- 
posits to  keep  merely  for  the  accommodation  of  the  depositor. 
Thus,  in  Whitney  v.  First  National  Bank  "  it  was  held  that  the 
act  conferred  neither  express  nor  implied  authority  to  receive  such 
deposits,  and,  therefore,  that  the  cashier  could  not  bind  the  bank 
by  such  a  contract,  though  made  with  the  knowledge  and  acquies- 
cence of  the  directors;  the  court  saying  that  such  a  contract  was 
entirely  foreign  to  the  purpose  of  the  corporation,  and,  if  made  by 
or  on  behalf  of  the  bank,  was  ultra  vires,  and  imposed  no  legal  ob- 
ligation or  duty  upon  the  corporation  as  bailee."'  The  question  was 
settled,  however,  by  the  supreme  court  of  the  United  States  in 
National  Bank  v.  Graham,"^  the  court  holding  that  national  banks 
have  implied  power  to  receive  such  deposits. 

see  L'Herbette  v.  Pittsfleld  Nat.  Bank,  162  Mass.  137,  38  N.  E.  368;  Scott  v. 
Bank,  72  Pa.  St.  471;  First  Nat.  Bank  v.  Rex,  89  Pa.  St.  308. 

"8  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  278;  Foster  v.  Bank,  17 
Mass.  479;    Scott  v.  Banlc,  72  Pa.  St.  471;    Lloyd  v.  Bank,  15  Pa,  St  172. 

0*  First  Nat.  Bank  v.  Ocean  Nat.  Bank.  60  N.  Y.  278. 

BB  50  Vt  388;   s.  c,  55  Vt,  154. 

Be  And  see  Wiley  v.  Bank,  47  Vt.  546.  But  see  Third  Nat  Bank  v.  Boyd. 
44  Md.  47. 

87 100  U.  S.  699.  And  see  Pattison  v.  Bank,  80  N.  X.  82;  i^irst  Nat  Bank  v. 
Bank,  60  N.  Y.  278. 

LAW  BAILM. — 4 


50  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 


RIGHTS  AND  LIABILITIES  OP  PARTIES. 

14.  The  rights  and  liabilities  of  the  bailor  and  bailee  de- 
pend primarily  upon  the  special  contract  in  each 
case.  The  follo-wlng  principles,  ho"wever,  are  com- 
mon to  all  bailments  for  the  bailor's  sole  benefit, 
unless  varied  by  the  special  contract: 

(aO  The  bailor  must  indemnify  the  bailee  against  neces- 
sary expenses  incurred  in  the  performance  of  the 
bailment  (p.  51). 

(b)  The  bailee  has  implied  authority  to  contract  for  and 
bind  the  bailor  where  the  contract  is  necessary  for 
the  preservation  and  care  of  the  property  (p.  52). 

Co)  The  bailor  is  not  liable  to  the  bailee  for  damages 
sustained  in  the  execution  of  the  bailment  contract, 
unless  he  negligently  exposed  the  bailee  to  danger 
without  warning  (p.  53). 

(d)  The  bailee  is  liable  for  misfeasance,  but  not  for  non- 

feasance (p.  54). 

(e)  The  bailee  has  no  right  to   use  the  property  bailed, 

except  in  so  far  as  such  use  is  incidental  to  the 
proper  performance  of  his  duties  (p.  57). 

(f )  The  right  of  property  in  the  thing  bailed  remains  in 

the  bailor.  The  bailee  has  not  even  a  special  prop- 
erty therein,  but  merely  a  possessory  interest. 
Either  party,  how^ever,  may  maintain  an  action  for 
an  injury  to  or  conversion  of  the  thing  bailed 
(p.  58). 

(g)  The   due    care    demanded   from    the  bailee  consists 

merely  in  the  exercise  of  slight  diligence  (p.  61). 

Jn  General. 

The  rights  and  liabilities  of  bailor  and  bailee  in  this  class  of 
bailments  may  well  be  considered  together.  The  bailee  plays  by 
far  the  most  important  part  in  the  transaction,  and  in  the  discus- 
sion of  his  rights  and  liabilities  those  of  the  bailor  will  incidentally 
appear.     The  rights  and  liabilities  of  both  parties  are,  of  course, 


JV6/jl  4  1U  ^^}J^^'^±^ 


§    14]  ItlGHTS    AND    LIABILITIES    OF    PARTIKS.  51 

primarilj  dependent  upon  the  contract  they  have  made.  The  in- 
structions of  the  bailor  accompanying  the  delivery  and  the  terms 
of  acceptance  imposed  by  the  bailee  are  binding  upon  both  parties. 
The  bailee,  in  the  absence  of  an  express  agreement,  as  the  contract 
is  wholly  gratuitous,  and  for  the  benefit  of  the  bailor,  is  bound  only 
to  slight  diligence,  and  responsible  only  for  gross  negligence.'" 
This  general  responsibility  may  be  varied,  however,  by  a  spi-cial 
contract  of  the  parties,  either  enlarging  or  qualifying  it;  and  in 
such  cases  the  particular  contract  will  form  the  rule  for  the  case.°^ 
The  contract,  however,  must  not  be  against  public  policy.  A  gra- 
tuitous bailee  cannot  contract  against  liability  for  his  own  gross 
negligence  or  fraud.®"  The  bailee's  liability  will  not  be  enlarged 
by  words  of  doubtful  import.®^  Thus,  a  bailment  to  kee-p  is  not 
i^e  same  thing  as  a  bailment  to  keep  safely.  But  the  words  "to 
secure  and  take  care  of"  or  "for  safe-keeping"  have  been  held  not 
to  be  special  agreements  for  more  than  the  legal  measure  of  dili- 
gence appropriate  to  the  bailment.®^ 

Bailor  must  Indemnify  Bailee  against  Expense. 

While  bailees  for  the  sole  benefit  of  th.e  bailor  are  not  entitled 
to  any  compensation  for  their  services,  they  are  entitled  to  recover 
their  actual  disbursements  and  expenses  necessarily  incurred  for 
the  preservation  of  the  deposit  or  performance  of  the  mandate."' 
This  is  naturally  implied  in  the  undertaking,  because  a  gratuitous 

68  See  post,  p.  61. 

B 9  Ferguson  v.  Porter,  3  Fla.  27;  McCauley  v.  Davidsou,  10  Minn.  41S  (Gil. 
33."));    Fellowes  v.  Gordou,  8  B.  Mon.  415;    Archer  v.  Walker,  38  Ind.  472. 

«o  Pattlson  y.  Bank,  4  Tbomp.  &  C.  (N.  Y.)  UtJ.  A  depositary  caunot  con- 
tract so  as  to  absolve  himself  altogether  from  liability.  Lancaster  Co.  Nat. 
Bank  v.  Smith,  62  Pa.  St.  47. 

81  Trefitz  V.  Canelli,  L.  R.  4  P.  C.  277;  Whitney  v.  Lee,  8  Mete.  (Mass.)  Itl; 
Ames  V.  Belden,  17  Barb.  (N.  Y.)  513. 

«2  Whitney  v.  Lee,  8  Mete.  (Mass.)  91.    And  see  Koss  v.  Hill,  2  C.  B.  S77. 

83  Story,  Bailm.  §§  121,  154;  Devalcourt  v.  Dillon,  12  La.  Ann.  672;  Harter 
V.  Bliinchard,  64  Barb.  (N.  Y.)  617.  Where  A.  deposits  in  B.'s  hands  mer- 
chandise to  be  sold,  and  the  proceeds  to  be  applied  to  the  extinguishment 
of  A.'s  debt  to  B..  the  transaction  Is  a  case  of  mandate-  and  B.  ia  entitled 
to  all  necessary  expensfn  thnt  1^"""  iinnn  incurred  in  fullilling  tlie  object  of 
the  mandate.  Devalcourt  v.  Dillon,  supra.  But  see  2  Pars.  Gout  (8ih  Ed.) 
96,  note  x. 


52  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Cil.    2 

act  would  otherwise  become  a  burden.  It  is  immaterial  that  the 
expenses  were  greater  than  the  owner  himself  would  have  paid,  if 
they  were  reasonably  incurred,  or  that  the  bailor  has  not  derived 
the  expected  benefit  from  the  execution  of  the  trust,  if  the  failure 
was  not  caused  by  the  fault  of  the  bailee.®*  So,  also,  the  bailor 
must  indemnify  the  bailee  against  liability  on  contracts  which  are 
incidental  to  the  performance  of  the  bailment.  Thus,  in  the  case 
of  a  mandate,  where  the  bailor  requested  the  bailee  to  take  a  pack- 
age of  goods  with  him  on  a  journey,  and  the  latter  contracted  with 
the  carrier  to  pay  the  freight,  the  bailor  must  indemnify  him  against 
liability  on  such  contract,® ° 

At  common  law  the  bailee  had  no  lien  for  such  expenses,  but 
might  claim  and  recover  them  in  an  action.®*  But,  where  the 
owner  of  lost  property  offers  a  reward  for  its  return,  the  finder  has 
a  lien  for  the  amount  of  the  reward,  provided  a  specific  sum  was 
named.® ^  If  no  particular  sum  was  offered,  but  merely  a  liberal 
reward,  there  is  no  lien.®' 

Bailee  may  Bind  Bailor  by  Contract. 

All  contracts  made  with  third  persons  by  the  bailee  in  the  execu- 
tion of  his  agency  and  within  the  scope  of  his  authority  are  binding 
upon  the  bailor,  and  must  be  fulfilled  by  him  when  he  is  made  a 
contracting  party.  It  springs  from  the  very  relation  of  bailor  and 
bailee  that  the  latter  necessarily  has  authority  to  contract  for  and 
bind  the  bailor,  when  necessary  for  the  preservation  and  care  of  the 
property.  Thus,  it  was  held  in  a  case  where  a  horse,  being  pas- 
tured bv  a  bailee  without  reward,  broke  his  leg,  that  the  bailee  had 
implied  authority  to  contract,  in  behalf  of  the  bailor,  with  a  com- 
petent farrier,  having  suitable  accommodations,  for  the  care  and 

8*  Story,  Bailm.  §  197. 

«6  Story,  Bailm.  §  198. 

«e  Nicholson  v.  Chapman,  2  H.  Bl.  254;  Reeder  v.  Anderson,  4  Dana  (Ky.) 
193;  Amory  v.  Flyn,  10  Johns.  (N.  Y.)  102;  Etter  v.  Edwards,  4  Watts,  63; 
Ohase  v.  Corcoran,  106  Mass.  286. 

«7  Wentworth  v.  Day,  3  Mete.  (Mass.)  352;  Cummings  v.  Gann,  52  Pa.  St. 
•^84. 

8  8  Wilson  V.  Guy  ton,  8  Gill  (Md.)  213.  But  no  compensation  can  be  claimed 
nnless  a  reward  is  offered.  Watts  v.  Ward,  1  Or.  86;  Amory  v.  Flyn,  10 
Johns.  (N.  Y,)  102. 


?     10  RIGHTS    AND    LIABILITIES    OF    PARTIES.  53 

keepinf?  of  the  horse,  and  to  bind  the  bailor  by  such  contract  until 
the  latter  could  be  informed  of  the  injury,  and  had  time  and  op- 
portunity to  make  other  provision  for  the  care  of  the  horse.®" 

Damage  Sustained  in  Executing  Bailment. 

There  is  some  confusion  of  ideas  as  to  the  right  of  the  bailee  to 
recover  for  damages  sustained  by  him  in  the  execution  of  the  trust 
The  general  statement  of  the  rule  seems  to  be  that  the  bailor  is  lia- 
ble to  the  bailee  for  all  damages  the  proximate  cause  of  wliich  was 
the  performance  of  the  bailment  contract.  It  is  sometimes  said 
that  the  bailor  is  liable  when  the  execution  of  the  trust  was  the 
cause,  but  not  when  it  was  merely  the  condition  or  occasion  of  the 
loss,^°  But,  as  a  recent  writer  has  pointed  out,  tlie  distinction  is 
merely  a  verbal  one,  for  the  only  standard  by  which  what  is  a  cause 
and  what  is  a  condition  can  be  determined  is  the  same  as  that 
which  determines  a  proximate  from  a  remote  cause.''^  The  simplest 
statement  of  the  rule,  therefore,  is  that  the  bailor  is  liable  to  the 
bailee  for  all  damages  sustained  by  him  which  are  the  natural  and 
probable — i.  e.  proximate — result  of  executing  the  bailment  con- 
tract. This  seems  to  be  the  substance  of  the  rule  at  civil  law,  but 
it  is  difiicult  to  see  upon  what  principle  of  the  common  law  the  lia- 
bility can  be  maintained  in  the  absence  of  express  contract  or 
some  negligence  on  the  part  of  the  bailor  in  exposing  the  bailee  to 
danger  without  warning.  At  common  law,  liability  is  imposed  in 
but  two  ways:  First,  by  consent,  as  in  cases  of  contracts;''*  sec- 
ond, by  operation  of  law,  in  connection  with  a  legal  wrong  or  tort.^' 
Now,  it  is  clear  that  liability  for  damage  sustained  by  the  bailee 
in  the  execution  of  the  bailment  contract  cannot  be  referred  to 
consent,  for,  as  Dr.  Paley  has  well  said,  "unless  the  same  be  pro- 
vided for  by  express  stipulation,  the  agent  is  not  entitled  to  any 
compensation  from  his  employer  on  that  account,  for,  where  the 
danger  is  not  foreseen,  there  can  be  no  reason  to  believe  that  the 
employer  engaged  to  indemnify  the  agent  against  it.  Still  less 
where  it  is  foreseen,  for  whoever  knowingly  undertaJtes  a  dangerous 
employment,  in  common  construction  takes  upon  himself  the  danger 

«»  Barter  v.  Blanchard,  64  Barb.  (N.  Y.)  617.  »«  Olark,  CJont.  2. 

TO  Story,  Bailm.  §  200.  »»  Jag.  Torts,  37. 

Ti  Jag.  Torts,  63. 


54  BAILMENTS    FOR    SOLE    BENEFIT    OF   BAILOR.  [Ch.    2 

and  the  consequences."  ''*  The  reasoning  of  the  learned  doctor  is 
quite  conclusive  as  to  liability  by  consent.  It  is  clear,  therefore, 
that,  if  there  is  any  liability  in  this  class  of  cases,  it  must  be  referred 
to  the  second  class,  or  liability  by  reason  of  tort.  Unless  the  bailor 
has  committed  a  legal  wrong  to  the  bailee,  he  is  not  liable  to  the 
latter  for  damages  sustained  in  the  course  of  the  bailment.  Damage 
alone  is  not  a  tort.  To  constitute  a  cause  of  action,  there  must  be 
a  conjunction  of  damage  and  conduct  of  a  character  to  which  the 
law  has  attached  liability  for  injurious  consequences.'' °  In  the  case 
under  discussion  the  conduct  of  the  bailor  consists  merely  in  bail- 
ing the  goods.  No  liability  attaches  to  such  a  lawful  act.  If 
danger  was  apparent,  the  bailee  must  be  held  to  have  assumed  it. 
It  is  not  wrong  to  make  a  bailment  of  dangerous  goods.  If  the 
danger  was  not  apparent,  still  the  bailor  was  guilty  of  no  wrong, 
unless  he  knew  of  it,  and  negligently  exposed  the  bailee  to  it  with- 
out warning.  If  he  did  so,  then  he  is  liable  for  the  resulting  dam- 
age, for  he  is  guilty  of  a  breach  of  duty,  which,  when  followed  by 
damage,  constitutes  a  tort.^* 

Liability  f 07-  Misfeasance  and  Nonfeasance. 

A  bailee  without  reward  is  liable  for  misfeasance,  but  not  for 
nonfeasance. '^^  If  one  gratuitously  agree  to  perform  a  mandate  or 
accept  a  deposit,  he  is  not  liable  for  a  refusal  to  do  either,  provided 
he  has  not  entered  upon  the  performance.  But,  if  one  actually 
enters  upon  the  performance  of  the  bailment  contract,  he  must  go 
through  with  it,  and  is  liable  for  any  failure  to  fulfill  its  terms 

T4  Paley,  Moral  Phil.  bk.  3,  c.  12. 

TBjag.  Torts,  87,— citing  Day  v.  Brownrigg,  10  Cti.  Dlv.  294,  304;  Back- 
liouse  V.  Bonomi,  9  H.  L.  Cas.  503;  Salvin  v.  Coal  Co.,  9  Ch.  App.  705; 
Rogers  v.  Rajendro  Dutt,  13  Moore  P.  C.  209;  Rich  v.  Railroad  Co.,  87  N.  ¥. 
382. 

T9  Jag.  Torts,  867. 

TT  Nonfeasance  of  gratuitous  undertaking  creates  no  liability.  Morrison  v. 
Orr,  3  Stew.  &  P.  (Ala.)  49.  French  v.  Reed,  6  Bin.  (Pa.)  308;  Smedes  v. 
Bank,  20  Johns.  (N.  Y.)  372;  Ainsworti  v.  Backus,  5  Hun,  414;  Thome  v. 
Deas,  4  Johns.  (N.  Y.)  84;  Rutgers  v.  Lucet,  2  Johns.  Cas.  (N.  Y.)  92.  It  was 
claimed  by  Sir  William  Jones  that  freedom  of  the  bailee  from  liability  for 
nonfeasance  existed  only  in  cases  where  the  bailor  suffered  no  special  loss, 
and  that  where  loss  or  damage  was  suffered  by  the  bailor  an  action  by  the 
latter  would  lie.    Jones,  Bailm.  53,  57,  61,  120. 


§14]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  55 

due  to  his  fault.^^  The  reason  for  this  distinction  lies  in  the  ^'la- 
tuitous  nature  of  the  bailment.  Until  the  property  has  been  de- 
livered to  the  bailee,  and  the  performance  thus  entered  upon,  there 
is  no  consideration  for  his  promise  to  become  a  bailee,  and  there- 
fore it  is  not  binding  in  law.^"  This  doctrine  was  firmly  established 
iu  England  by  the  case  of  Elsee  v.  Gatward,^"  and  in  America  by 
the  leading  case  of  Thorne  v.  Deas.^^  The  able  opinion  of  Chancel- 
lor Kent  in  the  latter  case  leaves  little  to  be  said  on  the  subject. 
In  that  case  the  defendant  had  voluntarily  undertaken  to  get  a 
vessel  insured,  but  neglected  to  do  so,  and  the  vessel  was  lost.  It 
was  held  that  the  defendant  was  not  liable,  because  there  was  no 
consideration  for  his  undertaking.  Kent,  C.  J.,  said:  "The  chief 
objection  raised  to  the  right  of  recovery  in  this  case  is  the  want 
of  a  consideration  for  the  promise.  The  offer  on  the  part  of  the 
defendant  to  cause  insurance  to  be  effected  was  perfectly  voluntary. 
Will,  then,  an  action  lie  when  one  party  intrusts  the  performance 
of  a  business  to  another,  who  undertakes  to  do  it  gratuitously,  and 
wholly  omits  to  do  it?  If  the  party  who  makes  this  engagement 
enters  upon  the  execution  of  the  business,  and  does  it  amiss,  through 
the  want  of  due  care,  by  which  damage  ensues  to  the  other  party, 
an  action  will  lie  for  this  misfeasance.  But  the  defendant  never 
entered  upon  the  execution  of  his  undertaking,  and  the  action  is 
brought  for  the  nonfeasance.  Sir  William  Jones,  in  his  Essay  on 
the  Law  of  Bailments,  considers  this  species  of  undertaking  to  be 
as  extensively  binding  in  the  English  law  as  the  contract  of  man- 
datum  in  the  Roman  law,  and  that  an  action  will  lie  for  damage  oc- 
casioned by  the  nonperformance  of  a  promise  to  become  a  manda- 
tary, though  the  promise  be  purely  gratuitous.  This  treatise  stands 
high  with  the  profession,  as  a  learned  and  classical  performance, 
and  I  regret  that  on  this  point  I  find  so  much  reason  to  question 

T8  See  cases  iu  preceding  note.  For  applications  of  tliis  priuciple  to  com- 
mon-law agencies,  see  Fellowes  v.  Gordon,  8  B.  Mon.  (Ky.)  415;  McGee  v. 
Bast,  6  J.  J.  Marsh.  (Ky.)  453;  Ferguson  v.  Porter,  3  Fla.  27;  Wilkinson  v. 
Coverdale,  1  Esp.  75;  Park  v.  Hammond,  4  Camp.  344;  Balfe  v.  West,  13  0. 
B.  4G6. 

T8  Schouler,  Bailm.  §  34;   Story,  Bailm.  §  171a. 

80  5  Term  R.  148. 

81  4  Johns.  (N.  Y.)  84. 


66  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

its  accuracy.  I  have  carefully  examined  all  the  authorities  to 
which  he  refers.  He  has  not  produced  a  single  adjudged  case,  but 
only  some  dicta  (and  those  equivocal)  from  the  Year  Books,  in 
support  of  his  opinion;  and,  were  it  not  for  the  weight  which  the 
authority  of  so  respectable  a  name  imposes,  I  should  have  supposed 
the  question  too  well  settled  to  admit  of  an  argument  A  short 
review  of  the  leading  cases  will  show  that  by  the  common  law  a 
mandatary,  or  one  who  undertakes  to  do  an  act  for  another  without 
reward,  is  not  answerable  for  omitting  to  do  the  act,  and  is  only 
responsible  when  he  attempts  to  do  it  and  does  it  amiss.  In  other 
words,  he  is  responsible  for  a  misfeasance,  but  not  for  a  nonfea- 
sance, even  though  special  damages  are  averred.  Those  who  are 
conversant  with  the  doctrine  of  mandatum  in  the  civil  law,  and 
have  perceived  the  equity  which  supports  it  and  the  good  faith 
which  it  enforces,  may,  perhaps,  feel  a  portion  of  regret  that  Sir 
William  Jones  was  not  successful  in  his  attempt  to  ingraft  this  doc- 
trine in  all  its  extent  into  the  English  law.  I  have  no  doubt  of 
the  perfect  justice  of  the  Roman  rule,  on  the  ground  that  good  faith 
ought  to  be  observed  because  the  employer,  placing  reliance  upon 
that  good  faith  in  the  mandatary,  was  thereby  prevented  from  doing 
the  act  himself,  or  employing  another  to  do  it.  This  is  the  reason 
which  is  given  in  the  Institutes  for  the  rule:  'Mandatum  non  sus- 
cipere  cuilibit  liberum  est;  susceptum  autem  consummandum  est, 
aut  quam  primum  renunciandum  ut  per  semetipsum  aut  per  alium, 
eandem  rem  mandator  exequator.'  ^^  But  there  are  many  rights  of 
moral  obligation  which  civil  laws  do  not  enforce,  and  are  therefore 
left  to  the  conscience  of  the  individual,  as  rights  of  imperfect  obliga- 
tion; and  the  promise  before  us  seems  to  have  been  so  left  by  the 
common  law,  which  we  cannot  alter,  and  which  we  are  bound  to 
pronounce."  After  a  short  review  of  the  early  cases,  the  learned 
judge  continued:  "There  is,  then,  no  just  reason  to  infer,  from  the 
ancient  authorities,  that  such  a  promise  as  the  one  before  us  is 
good,  without  showing  a  consideration.  The  whole  current  of  the 
decision  runs  the  other  way,  and  from  the  time  of  Henry  VII.  to  this 
time  the  same  law  has  been  uniformly  maintained.  The  doctrine 
on  this  subject,  in  the  Essay  on  Bailments,  is  true  in  reference  to 

8  2  Co.  Inst.  lib.  3,  27,  11. 


§    14]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  .57 

the  civil  law,  but  is  totally  unfounded  in  reference  to  the  English 
law;  and  to  those  who  have  attentively  examined  the  head  of  'Man- 
dates,' in  that  Essay,  I  hazard  nothing  in  asserting  that  that  part  of 
the  treatise  appears  to  be  hastily  and  loosely  written.  It  does  not 
discriminate  well  between  the  cases;  it  is  not  very  profound  in 
research,  and  is  destitute  of  true  legal  precision." 

Same — What  Constitutes  Misfeasance. 

For  anything  amounting  to  a  positive  breach  of  the  bailment  con- 
tract, and  for  fraud  or  bad  faith,  the  bailee  is  strictly  liable.*^  Any 
unauthorized  use  or  misappropriation  of  the  property  bailed  con- 
stitutes a  conversion.^*  The  bailee  has  no  authority  to  sell  or 
pledge  it;  and  if  he  does  so  ho  is  liable  for  conviM-sion,**^  and  tin- 
owner  may  reclaim  his  goods  from  any  person  found  in  possession 
of  them.®*'  It  is  a  breach  of  trust  for  the  bailee  to  break  open  a 
locked  chest  or  sealed  pnrknp-p.®^  Gross  negligence  in  the  per- 
formance of  the  bailment  contract  is  a  misfeasance. ^ * 

Right  of  Bailee  to  Use  Property. 

In  this  class  of  bailments,  the  bailee  has  no  general  right  to  use 
the  property  bailed  to  him,  for,  if  he  had  such  a  right,  the  bailment 
would  become  one  for  the  mutual  benefit  of  the  bailor  and  bailee.®" 
It  may  happen,  however,  that  the  proper  keeping  of  the  property 

8  3  Knowing  v.  Manly,  49  N.  Y.  192;  Bank  of  Utica  v.  Smedes,  3  Cow.  (N. 
Y.)  GG2;  Bank  of  Utica  v.  M'Kinster,  11  Wend.  (N.  Y.)  473;  Eddy  v.  Living- 
ston, 35  Mo.  4S7;  Bland  v.  Wo  mack,  2  Murph.  (N.  C.)  373;  Graves  v. 
Ticknor,  6  N.  H.  537;    Persch  v.  Quiggle,  57  Pa.  St.  247. 

84  Wilkinson  v.  Verity,  L.  R.  G  C.  P.  20G;  Lockwood  v.  Bull,  1  Cow.  (N. 
Y.)  322;  Beardslee  v.  Richardson,  11  Wend.  (N.  Y.)  25;  Delaware  Bank  v. 
Smith,  Edm.  Sel.  Cas.  (N.  Y.)  35;  Graves  v.  Ticknor,  6  N.  H.  537;  Persch 
V.  Quiggle,  57  Pa.  St.  247;  Colyar  v.  Taylor,  1  Cold.  (Tenn.)  372;  Clark  v. 
Gaylord,  24  Conn.  484. 

85  King  V.  Bates,  57  N.  H.  44G;    Dale  v.  BrinckerhoCf,  7  Daly  (N.  Y.)  45. 
8  6  Babcock  v.  Gill,  10  Johns.  (N.  Y.)  237. 

8T  Story,  Bailm.  §  92;  Giv.  Code  La.  art.  2914. 

88  French  v.  Reed,  6  Bin.  (Pa.)  308:  First  Nat.  Bank  of  Carlisle  v.  Graham, 
79  Pa.  St.  106;    Whitney  v.  Lee,  8  Mete.  (Mass.)  92. 

89  Lane  v.  Cameron,  38  Wis.  603.  The  finder  of  a  lottery  ticket  is  not  en- 
titled to  receive  payment  on  it.  If  paid,  with  notice  of  the  holder's  posses- 
sion by  finding,  it  can  be  collected  again  by  the  rightful  owner.  McLaughlin 
V.  Waite,  5  Wend.  (N.  Y.)  404. 


58  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

involves  a  certain  measure  of  use.  Thus,  horses  must  be  exercised 
and  cows  milked.®"  Whatever  positive  profit  arises  from  such  use 
must  be  accounted  for  to  the  bailor.  Yet  a  slight  beneficial  enjoy- 
ment by  the  bailee  wholly  incidental  to  the  proper  performance  of 
his  duties  would  probably  not  render  the  bailment  one  for  mutual 
benefit.  The  convenience  of  using  a  horse  while  exercising  it  would 
seem  too  slight  a  benefit  to  change  the  character  of  the  bailment. 
Tlie  substance  of  the  matter  is  admirably  stated  by  Mr.  Schouler:  ®^ 
'^Whatever  use  follows  the  delivery  should  be  viewed,  as  concerns 
the  bailee,  more  as  a  duty  than  a  right,  or  as  an  incident  rather 
than  an  object."  Any  attempt,  however,  by  the  bailee  to  act  in  re- 
gard to  the  thing  as  its  owner,  to  the  extent  of  making  an  improper 
use  of  it,  or  of  disposing  of  it,  would  constitute  a  conversion,  render- 
ing him  at  once  liable  to  the  owner.® ^ 

Special  Property  of  Bailee — Possessory  Interest — Right  of  Action. 

There  is  a  good  deal  of  confusion  and  conflict  in  the  books  as  to 
whether  a  gratuitous  bailee  has  a  "special  property"  in  the  goods 
bailed,  or  merely  a  "possessory  interest"  "     Perhaps  a  good  deal  of 

»o  Mores  v.  Conham,  Owen,  123;   Anon.,  2  Salk.  522. 

91  Bailm.   61. 

92  Dale  V.  Brinckerhoff,  7  Daly  (N.  Y.)  45;  King  v.  Bates,  57  N.  H.  446. 
And  see  cases  cited  in  the  preceding  paragrapli. 

93  The  owner's  agent  gave  an  old  safe  to  a  party  to  sell,  with  the  privilege 
of  using  it.  The  depositary  found  a  roll  of  bills  between  the  casing  and  the 
lining.  Held,  as  against  the  owner  of  the  safe,  the  depositary  could  keep  the 
money.  Durfee  v.  Jones,  11  R.  I.  588.  A  servant  found  money  in  paper 
stock  of  his  employer.  Held,  he  could  hold  it  against  his  employer.  Bowen 
V.  Sullivan,  62  Ind.  281.  And  a  domestic  servant  in  a  hotel  who  found  a  roll 
of  bills  in  a  public  parlor  was  held  entitled  to  them  as  against  the  hotel- 
keeper.  Hamaker  v.  Blanchard,  90  Pa.  St.  377.  But  in  Massachusetts  it  was 
held  that  a  finder  of  a  pocketbook  left  by  the  owner  on  a  table  in  a  shop 
could  not  hold  it  against  the  shopkeeper,  McAvoy  v.  Medina,  11  Allen  (Mass.) 
548.  In  an  action  by  the  husband  and  two  children  of  P.  against  a  son  of 
the  latter  to  recover  money  found  on  P.  when  she  was  committed  to  an  insane 
asylum,  it  appeared  that  the  money  was  given  defendant  by  the  commis- 
sioners of  charities,  on  his  agreement  to  keep  it  for  his  mother.  Held  that, 
as  defendant  received  the  money  from  the  custodians  of  his  mother's  person 
and  the  property  found  on  it,  who  have  all  the  obligations  of  bailees,  he  could 
defend  in  his  mother's  right,  and  set  up  such  defense  as  she  might  make. 
Peters  v.  Peters,  3  Misc.  Rep.  264,  22  N.  Y.  Supp.  764.    But  if  the  depositary 


§    14]  RIGHTS    AND    LIABILITIES    OP    PARTIES.  59 

the  controversy  is  over  terms,  and  the  confusion  comes  from  loosely 
using  the  phrase  "special  property"  to  mean  sometimes  merely  a 
lawful  possession,  which_may^  be  maintained  against  wrons^dcH^s. 
This  latter  sense  is  far  from  accurate.  ''When  we  speak  of  a  per- 
son's having  a  property  in  a  thing,  we  mean  that  he  has  some  fixed 
interest  in  it  (jus  in  re),  or  some  fixed  right  attached  to  it,  either 
equitable  or  legal;  and,  when  we  speak  of  a  special  property  in  a 
thing,  we  mean  some  special  fixed  interest  or  right  therein,  distinct 
from  and  subordinate  to  the  absolute  property  or  interest  of  the 
general  owner."  ^*  Thus,  where  goods  are  pledged  for  a  debt,  the 
pledgee  has  a  special  property  therein ;  for  he  has  a  qualified  interest 
In  the  thing,  coextensive  with  his  debt,  as  owner  pro  tanto.*"*  But 
it  seems  a  confusion  of  all  distinctions  to  say  that  a  naked  bailee, 
such  as  a  depositary,  has  a  special  property,  when  he  has  no  more 
than  a  lawful  custody  or  possession  of  the  thing,  without  any  vested 
interest  therein  for  which  he  can  detain  the  property,  even  for  a 
moment,  against  the  lawful  owner.  The  reason  given  for  the 
statement  that  such  a  bailee  has  a  special  property  in  the  goods  is 
that  he  may  maintain  trover  *'  as  well  as  trespass  against  one  who 
disturbs  his  possession  by  injuring  or  converting  such  property, 
and  that,  to  maintain  trover,  the  plaintiff  must  have  either  an 
absolute  or  special  property  in  the  goods  which  are  the  subject  of 
the  action;  that  trespass  is  founded  on  possession,  and  trover  on 
property.     Indeed,  all  these  statements  find  support  in  the  authori- 

has  no  property  whatever  in  the  goods,  yet  his  possession  is  sufficient  ground 
for  a  suit  against  a  tort-feasor.  Poole  v.  Symonds,  1  N.  H.  289;  Thayer  v. 
Hutchinson,  13  Vt.  504;  Sutton  v.  Bucli,  2  Taunt.  302;  Burton  v.  Hughes, 
2  Bing.  173.  A  depositary  may  sue  one  who  has  converted  the  property, 
though  the  former  may  not  be  responsible  to  the  owner.  Chamberlain  v. 
West,  37  Minn.  54,  33  N.  W.  114. 

9*  Story,  Bailm.  §  93g. 

8B  See  post,  p.  133. 

88  A  receiptor  to  whom  a  sheriff  has  Intrusted  for  safe-keeping  property 
attached  by  him  on  a  writ  against  a  third  person  may  maintain  trover  against 
a  wrongdoer.  Thayer  v.  Hutchinson,  13  Vt.  504.  Compare  Dillenback  v. 
Jerome,  7  Cow.  (N.  Y.)  294;  Norton  v.  People,  8  Cow.  (N.  Y.)  137.  A  finder 
or  other  depositary  may  maintain  trover  against  a  person  converting  the  arti- 
cle. Armory  v.  Delamirie,  1  Strange,  505;  New  York  &  H.  R,  Co.  v.  Haws, 
56  N.  Y.  175;    Brown  v.  Shaw,  51  Minn.  266,  53  N.  W.  633. 


60  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR,  [Ch.   2 

ties.  But  the  distinction  between  trespass  and  trover  in  this  regard 
is  merely  a  broad  generalization,  which,  unexplained,  is  misleading. 
In  trespass,  possession  is  indispensable  to  maintain  the  suit,  and 
property  is  wholly  immaterial.®^  In  trover,  possession  is  likewise 
suflQcient  to  maintain  the  action;  but,  even  without  possession, 
trover  can  be  maintained,  provided  the  plaintiff  has  a  general  or 
special  property,  together  with  a  right  of  possession.®^  If  a  mere 
depositary  has  not  a  special  property  in  the  goods,  he  cannot  main- 
tain replevin  for  them,  because  that  action  requires  property  in  the 
plaintiff.®'  The  question  under  discussion  is  not  of  much  impor- 
tance in  those  states  that  have  abolished  the  old  forms  of  actions, 
and  redress  all  wrongs  in  one  form  of  action,  called  a  "civil  action"; 
for,  whether  the  bailee  has  a  mere  "possessory  interest"  or  a  "spe- 
cial property,"  it  is  nowhere  doubted  that  in  some  form  of  action 
he  may  sue  third  persons  for  injuries  to  or  conversion  of  the  thing 
bailed.i»» 

Same — Right  of  Bailor  to  Sue. 

As  has  been  seen,  the  general  right  of  property  in  the  thing 
bailed  remains  in  the  bailor.  He  may  therefore  sue  for  any  inter- 
ference with  his  bailee's  possession,  or  injury  to  the  thing  bailed. ^°^ 
In  such  cases,  either  the  bailor  or  the  bailee  may  sue;  but  a  recovery 
by  either  one  is  a  bar  to  a  similar  action  by  the  other.^°' 

8  7  Ship.  Com.  Law  PI.  (2d.  Ed.)  65;  Hoyt  v.  Gelston,  13  Johns.  (N.  Y.)  141; 
Hanmer  v.  Wilsey,  17  Wend.  (N.  Y.)  91;  Illinois  &  St.  L.  Ry.,  etc.,  Co.  v. 
Cobb,  94  lU.  55;    Laing  v.  Nelson,  41  Minn.  521,  43  N.  W.  476. 

88  Ship.  Com.  Law  PI.  (2d  Ed.)  72;  Hotchkiss  v,  McVickar,  12  Johns.  (N, 
Y.)  403;  Stephenson  v.  Little,  10  Mitch.  433;  Hance  v.  Boom  Co.,  70  Mich, 
227,  38  N.  W,  228;  Chickering  v,  Raymond,  15  111.  362;  Owens  v.  Weedman, 
82  111.  409. 

89  Ship.  Com.  Law  PI.  (2d  Ed.)  112;  Waterman  v.  Robinson,  5  Mass.  303; 
Holler  V.  Coleson,  23  lU.  App.  324;  Pattison  v.  Adams,  7  HiU  (N.  Y.)  126; 
Lester  v.  McDowell,  18  Pa.  St.  91. 

100  Fish  V.  Skut,  21  Barb.  (N.  Y.)  333;  Tremont  Coal  Co.  v.  Manly,  60  Pa. 
St.  384.    And  see  Rooth  v.  Wilson,  1  Barn.  &  Aid.  58. 

101  Thorp  V.  Burling,  11  Johns.  (N.  Y.)  285;  Gary  v.  Hotailing,  1  Hill,  311; 
Ash  V.  Putnam,  1  Hill  (N.  Y.)  302. 

102  Green  v.  Clarke,  12  N.  Y,  343;  Chesley  v.  St,  Clair,  1  N.  H.  189. 


§    14]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  61 

Bailee's  Liability  for  Negligence. 

In  bailment  for  the  sole  benefit  of  the  bailor  the  law  holds  the 
bailee  liable  only  for  losses  attributable  to  his  gross  negligence.^"' 
This  doctrine  was  laid  down  by  Lord  Holt  in  the  celebrated  case 

108  As  to  deposits,  see  Dunn  v.  Branner,  13  La.  Ann.  452;  Chase  v.  Ma- 
beriT,  3  Har.  (Del.)  2t>6;  Dougherty  v.  Posegate,  3  Iowa,  88;  Green  v. 
Hollingsworth,  5  Dana  (Ky.)  173;    Mechanics'  &  Traders'   Bank  v.  Gordon, 

5  La.  Ann.  604;  Foster  v.  Essex  Bank,  17  Mass.  471);  Edsou  v.  Weston,  7 
Cow.  (N.  Y.)  278;  Sodowsky  v.  McFarland,  3  Dana  (Ky.)  204;  Whitney  v. 
Lee,  8  Mete.  (Mass.)  91;  McKay  v.  Hamblin,  40  Miss.  472;  Montelth  v. 
Bissell,  Wright  (Ohio)  411;  Spooner  v.  Mattoon,  40  Vt.  300;  Davis  v.  Gay, 
141  Mass.  531,  6  N.  B,  549;  Henry  v.  Porter,  46  Ala.  293;  Hale  v.  Rawallie, 
8  Kan.  136.  As  to  mandates,  see  Kemp  v.  Farlow,  5  Ind.  462;  McNabb  v. 
Lockhart,  18  Ga.  495;  Skelley  v.  Kahu,  17  111.  170;  Conner  v.  Winton,  8  Ind. 
315;  Jourdan  v.  Reed,  1  Iowa,  135;  Storer  v.  Gowen,  18  Me.  174;  Lampley 
V.  Scott,  24  Miss.  528;  McLean  v.  Rutherford,  8  Mo.  109;  Stanton  v.  Bell, 
2  Hawks  (N.  C.)  145;  Sodowsky  v.  McFarland,  3  Dana  (Ky.)  204;  Tomp- 
kins V.  Saltmarsh,  14  Serg.  &  R.  (Pa.)  275;  Anderson  v.  Foresman,  Wright 
(Ohio)  698;  Tracy  v.  Wood,  3  Mason,  132,  Fed.  Cas.  No.  14,130;  McNabb 
V.  Lockhart,  18  Ga,  495;  Tompkins  v.  Saltmarsh,  14  Serg.  &  R.  (Pa.)  275; 
Lobenstein  v.  Pritchett,  8  Kan.  213.  And,  generally.  First  Nat.  Bank  v. 
Ocean  Nat.  Bank,  60  N.  Y.  278;  Lancaster  Co.  Nat.  Bank  v.  Smith,  62 
Pa.  St.  47;  Griffith  v.  Zipperwick,  28  Ohio  St.  388;  Green  v.  Blrchard,  27 
Ind.  483;  Knowles  v.  Railway  Co.,  38  Me.  55.  One  to  whom  a  picture  was 
sent  without  his  knowledge  is  not  liable  for  an  accidental  injury  to  It.  Leth- 
bridge  v.  Phillips,  2  Starkie,  544.  Bailee  liable  only  for  gross  negligence 
is  still  liable  for  actual  conversion  of  the  property.  Graves  v.  Smith,  14 
Wis.  5.  Where  a  hotel  clerk  received  and  signed  a  return  receipt  for  a 
registered  letter  delivered  to  him  by  a  letter  carrier  for  a  guest  of  the  hotel, 
and  the  letter  was  lost  through  his  negligence,  he  was  held  liable.  Joslyn  v. 
King,  27  Neb.  38,  42  N.  W.  756.  Where  one  gratuitously  undertakes  to 
carry  a  letter  containing  money  from  one  city  to  another,  he  is  liable  for  non- 
delivery.   Beardslee  v.  Richardson,  11  Wend.  (N.  Y.)  25;    Graves  v.  Ticknor. 

6  N.  H.  537.  A  ring  deposited  with  defendant  to  be  illegally  raffled  for  was 
lost  by  his  gross  carelessness.  Held,  that  he  was  liable.  Woolf  v.  Bernero, 
14  Mo.  App.  518.  An  agreement  by  an  agent  of  a  carrier  to  have  goods  for- 
warded to  their  proper  destination,  from  a  point  on  a  connecting  line  to  which 
they  were  carried  through  the  mistake  of  the  shipper  In  addressing  them, 
makes  such  carrier  merely  a  gratuitous  bailee  of  the  goods.  Trevelen  v. 
Northern  Pac.  R.  Co.,  89  Wis.  598,  62  N.  W.  536.  A  common  carrier  is  not 
liable,  as  a  trespasser,  to  the  owner  of  merchandise  which  it  has  refused  to 
receive,  as  being  badly  packed,  and  which  is  destroyed,  without  negligence 
on  its  part,  while  being  separated  by  it  from  other  freight  with  which  It  has 


62  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

of  Coggs  V.  Bernard,^"*  and  all  subsequent  text-books  on  the  subject 
agree  with  it.  But  what  constitutes  gross  negligence  is  a  question 
of  no  little  difficulty.  It  cannot  be  answered  by  any  rule  which 
will  furnish  a  reliable  test  in  all  cases.  It  must  be  determined  as 
a  question  of  fact  in  each  particular  case  by  the  jury,  under  proper 
instructions  from  the  court."'*  The  care  due  from  the  bailee  de- 
pends upon  circumstances,  such  as  the  nature  and  quality  of  the 
goods  bailed,  and  the  character  and  customs  of  the  place  where 

been  improperly  mixed,  and  which  It  is  such  carrier's  duty  to  transport. 
Gulf,  C.  &  S.  F.  Ry,  Ck).  v.  Insurance  Co.  of  North  America  (Tex.  Civ.  App.) 
28  S.  W.  237.  Where  the  defendant  was  to  carry  gold  dust  from  California 
to  Iowa  gratuitously,  there  dispose  of  it,  and  turn  the  proceeds  over  to  plain- 
tiff's wife,  he  was  held  liable  only  for  gross  negligence.  Jourdan  v.  Reed,  1 
Iowa,  135.  Where  a  person  was  to  take  abroad  bonds  gratuitously,  and  de- 
posit them  for  sale  for  another  person,  he  was  held  liable  only  for  gross  negli- 
gence. Carrington  v.  Ficklin,  32  Grat.  (Va.)  670.  But  a  deposit  made  at  in- 
stance of  bailee  requires  observance  of  ordinary  care,  at  least.  Green  v. 
Hollingsworth,  5  Dana  (Ky.)  173.  Kent  says  there  are  several  cases  in  which 
a  naked  depositary  is  answerable,  besides  the  case  of  gross  neglect:  (1) 
When  he  makes  a  special  acceptance  to  keep  the  goods  safely.  (2)  When  he 
spontaneously  and  officiously  proposes  to  keep  the  goods  of  another.  (3)  When 
he  is  to  receive  a  compensation  for  the  deposit.  2  Kent,  Comm.  5G5.  On  a 
deposit  or  bailment  of  money,  to  be  kept  without  recompense,  if  the  bailees, 
without  authority,  attempt  to  transmit  the  money  to  the  bailor,  at  a  distant 
point,  by  mail  or  private  conveyance,  and  the  money  is  lost,  they  are  respon- 
sible. Stewart  v.  Frazier,  5  Ala.  114.  If  the  bailee  delegates  his  trust  with- 
out the  consent  of  the  bailor,  he  is  liable  regardless  of  the  question  of  negli- 
gence. Colyar  v.  Taylor,  1  Cold.  (Teun.)  372.  A  bank  undertaking  gratuit- 
ously to  collect  drafts  through  its  correspondents  is  liable  for  their  default. 
Streissguth  v.  National  German-American  Bank,  43  Minn.  50,  44  N.  W.  797; 
Power  V.  First  Nat.  Bank,  6  Mont.  251.  12  Pac.  597;  Simpson  v.  Waldby,  G3 
Mich.  439,  30  N.  W.  199.  By  some  authorities  it  is  thought  that  where  the 
bailee  voluntarily  offers  to  keep  the  goods  of  another  he  is  liable  for  ordinary 
negligence,  on  the  ground  that,  the  request  coming  from  him,  the  bailment 
Is  founded  on  a  consideration,  the  act  of  the  bailor  in  acceding  to  the  re- 
quest being  a  sufficient  consideration;  but  the  point  has  not  been  directly 
decided.  See  Lawson,  Bailm.  §  34;  Edwards,  Bailm.  §§  35,  39,  135;  Jones, 
Bailm.  §  48. 

10*  2  Ld.  Raym.  909. 

106  Lancaster  Co.  Nat.  Bank  v.  Smith,  G2  Pa.  St.  47;  Griffith  v.  Zipperwick, 
28  Ohio  St.  388;  Doorman  v.  Jenkins,  2  Adol.  &  E.  256;  Carrington  v.  Fick- 
lin, 32  Grat.  (Va.)  670;  Third  Nat.  Bank  v.  Boyd,  44  Md.  47. 


§    14]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  63 

they  are  to  be  kept.^°'  There  is  a  degree  of  care,  however,  indef- 
initely varied  by  the  nature  of  the  bailment  and  the  circumstances 
of  the  case,  which  a  bailor  has  a  rij^ht  to  expect  from  a  gratuitous 
bailee.  This  degree  of  care  is  called  "slight  diligence,"  and  the 
want  of  it  is  designated  as  "gross  negligence,"  and  will  render  the 
bailee  liable  for  resulting  losses.  Judge  Story's  definition  ^°^  of 
slight  diligence  as  that  degree  of  care  or  diligence  which  men 
habitually  careless  or  of  little  prudence  generally  take  in  their  own 
concerns  is  perhaps  as  good  as  can  be  given.^°*  Gross  negligence 
may  exist  irrespective  of  any  actual  fraud  or  intentional  bad  faith. 
It  is  a  breach  of  the  contract  or  obligation  which  the  law  implies 
from  the  bailment  in  the  absence  of  an  express  contract  on  the 
subject.  ^°» 

106  Tompkins  v.  Saltmarsh,  14  Serg.  &  R.  275;  Eddy  v.  Livingston,  35  Mo. 
487. 

107  Bailm.  §  16. 

108  In  Tompkins  v.  Saltmarsh,  14  Serg.  &  R.  275,  gross  negligence  was  de- 
fined as  the  omission  of  that  degree  of  care  which  even  the  most  inattentive 
and  thoughtless  men  take  of  their  own  concerns.  Ordinary  negligence  was 
defined  as  the  want  of  that  diligence  which  the  generality  of  mankind  use 
in  their  own  concerns.  These  definitions  were  approved  in  First  Nat.  Bank 
of  Carlisle  v.  Graham,  79  Pa.  St.  lOG,  117.  The  amount  of  care  which  gratuit- 
ous bailees,  under  the  same  circumstances,  are  accustomed  to  take  of  similar 
goods  is  a  good  test.  Brown,  Carriers,  §  28;  Tracy  v.  Wood,  3  Mason,  132, 
Fed.  Cas.  No.  14,130;  Gray  v.  Merriam,  148  111.  179,  35  N.  B.  810;  Preston 
V.  Prather,  137  U.  S.  604,  11  Sup.  Ot.  162;  Bland  v.  Womack,  2  Murph.  373; 
Anderson  v.  Foresman,  Wright  (Ohio)  598. 

109  H.  offered  to  invest  a  sum  of  money  for  D.  in  the  purchase  of  an  an- 
nuity. He  laid  out  the  money  in  securities  wholly  insufiicient,  and  of  no 
value  whatever.  Held,  that  it  does  not  necessarily  follow  from  these  cir- 
cumstances that  H.  was  guilty  of  gross  or  coiTupt  negligence.  Dartnell  v. 
Howard,  4  Bam.  &  G.  345.  If  a  depositary  fails  to  procure  suitable  means 
for  the  extinguishment  of  fires,  he  cannot  be  held  liable  for  an  accidental 
fire  which  destroyed  the  chattel  deposited.  Clark  v.  Eastern  R,  Co.,  139 
Mass.  423,  1  N.  E.  128.  If  the  deposit  is  taken  away  by  superior  force,  the 
depositary  may  make  this  a  defense.  Watkins  v.  Roberts,  28  Ind.  167.  If 
a  person  Intrusted  with  mouey  by  his  superior  to  give  to  a  third  person  gives 
it  to  a  boy  whom  he  has  seen  but  a  few  times,  and  who  has  but  recently  en- 
tered the  employ  of  said  third  person,  and  the  boy  absconds,  the  mandatary 
is  guilty  of  gross  negligence,  and  is  liable  to  his  superior  for  damages.  Sk»^l- 
ley  V.  Kahn,  17  111.  169.  Where  the  speculations  In  stocks  and  bonds,  on  mar- 
gins, of  a  bank  cashier,  of  which  the  president  had  knowledge,  were  such 


64  BAILMENTS    FOR    SOLE    BENEFIT   OF    BAILOR.  [Ch.    2 

It  has  been  frequently  said  that  the  bailee  is  not  liable  for  a  loss 
where  he  takes  the  same  care  of  the  thing  bailed  as  he  does  of  his 
own  property.^ ^°  But,  as  has  been  justly  said,  the  rule  affords  a 
presumption  rather  than  a  conclusive  test.  The  bailee  is  bound,  as 
are  the  parties  to  all  contracts,  to  the  exercise  of  good  faith;  and, 
if  he  keeps  the  goods  intrusted  to  him  with  less  care  than  he  keeps 
his  own  of  the  same  kind,  this  is  a  circumstance  from  which  a  jury 
might  well  infer  a  want  of  good  faith;  but  the  keeping  of  them  as 
his  own  is,  as  has  been  said  by  Lord  Holt,  an  argument  for  his  hon- 
esty. The  Roman  or  civil  law  required  nothing  more.  Q-ross  neg- 
ligence was  regarded  as  the  same  thing  as  fraud,  and  consequently 
was  considered  rebutted  when  it  appeared  that  the  bailee  had  taken 
the  same  care  of  the  bailed  goods  that  he  did  of  his  own.^^^  But 
it  has  been  justly  held,  both  in  this  country  and  in  England,  that 
the  mere  fact  that  a  depositary  kept  the  deposit  in  the  same  place 
or  with  the  same  care  that  he  kept  his  own  property  will  not  exempt 
him  from  liability  for  gross  negligence.^^^     In  Doorman  v.  Jen- 

that  the  president  must  have  known  of  the  cashier's  dishonesty,  the  bank  is 
liable  for  bonds  deposited  with  it  as  a  gratuitous  bailee  which  the  cashier 
converted  to  his  own  use.  Merchants'  Nat.  Bank  v.  Guilmartin,  93  Ga.  503, 
21  S.  E.  55. 

110  Anderson  v.  Foresman,  Wright  (Ohio)  598.  Where  money  is  paid  by  a 
judgment  debtor  to  the  judge,  and  the  latter  places  it  in  his  desk  with  his 
own  money  and  then  notifies  the  judgment  creditor  that  the  money  is  ready 
for  him,  and  the  latter  neglects  for  two  days  to  call  for  it,  during  which  time 
the  money  is  stolen,  it  was  held  that  the  judge  was  not  guilty  of  gross  negli- 
gence, and  hence  was  not  liable.  Monteith  v.  Bissell,  Wright  (Ohio)  411. 
But  where  a  mandatary  lost  money  belonging  to  a  mandator,  while  he  pre- 
served his  own  money,  he  is  liable  for  the  loss.  Bland  v.  Womack,  2  Murph. 
(N.  C.)  373. 

111  Story,  Bailm.  §  65.  It  is  a  suspicious  circumstance  when  a  bailee  claims 
to  have  lost  the  bailed  chattels  and  to  have  saved  his  own  when  both  were 
together.     Bland  v.  Womack,  2  Murph.  273. 

112  Giblin  v.  McMullen,  21  Law  T.  (N.  S.)  214;  First.  Nat.  Bank  of  Car- 
lisle v.  Graham,  79  Pa.  St  106;  Tracy  v.  Wood,  3  Mason,  132,  Fed.  Gas.  No. 
14,130;  Doorman  v.  Jenkins,  2  Adol.  &  E.  256.  "If  he  keeps  the  goods  as 
he  keeps  his  own,  though  he  keeps  his  own  negligently,  he  is  not  answer- 
able for  them.  He  Is  only  answerable  for  fraud,  or  that  gross  neglect  which 
Is  evidence  of  fraud."  Knowles  v.  Railroad  Co.,  38  Me.  55,  59.  See,  also, 
Just.  Inst.  lib.  3,  tit.  15,  §  3;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  914;  Fos- 
ter V.  Essex  Bank,  17  Mass.  479,  500. 


§    14]  RIGHTS    AND    LIABILITIES    OF    PA.RTIES.  65 

kins,"'  Chief  Justice  Denman  told  the  jury  that  it  did  not  follow, 
from  the  defendant  having  lost  his  own  money  at  the  same  time  as 
the  plaintiff's,  that  he  had  taken  such  care  as  a  reasonable  man 
would  ordinarily  take  of  his  own,  and  that  the  fact  relied  on  was 
no  answer  to  the  action  if  the  jury  believed  that  the  loss  had  oc- 
curred through  gross  negligence.  That  was  a  case  in  which  a  cof- 
fee-house keeper  received  a  deposit  of  money,  and  placed  it  in  his 
cash  box,  in  his  taproom,  in  which  he  kept  his  own  cash,  and  both 
were  stolen  together.  There  was  a  verdict  for  the  plaintiff,  and 
the  instruction  was  approved  by  the  whole  court.  In  another  noted 
case,  that  of  Tracy  v.  Wood,^^*  it  was  proved  that  the  defendant 
was  intrusted  with  two  bags  of  gold,  one  within  the  other,  to  be 
gratuitously  carried  by  him  from  New  York  to  Boston,  and  that 
he  brought  the  gold  on  board  the  vessel  on  the  evening  before  it 
was  to  sail  for  Boston,  in  a  valise  containing  money  of  his  own, 
and  left  the  valise  during  the  night  in  another  cabin.  In  the  morn- 
ing, just  before  the  vessel  started,  the  defendant  found  that  one  of 
the  bags  was  missing,  and  immediately  went  on  deck  to  make  known 
his  loss,  in  the  meantime  leaving  the  remaining  bag  in  his  valise 
on  the  cabin  table.  On  returning,  this  bag  also  was  missing.  It 
was  furthermore  proved  that,  on  making  inquiries  as  to  whether  his 
valise  would  be  safe,  he  was  told  that,  if  valuable,  it  had  better  be 
intrusted  to  the  care  of  the  captain's  clerk.  The  whole  point  in 
the  case  was  as  to  the  question  of  negligence,  and  it  was  stated 
by  Judge  Story  that  "the  true  way  of  considering  cases  of  this 
nature  is  to  consider  whether  the  party  has  omitted  that  care  which 
bailees  without  hire  or  mandataries  of  ordinary  prudence  usually 
take  of  property  of  this  nature.  If  he  has,  then  it  constitutes  a 
case  of  gross  negligence.  *  ♦  »  Q^e  present  is  a  case  of  a  man- 
datary of  money.  The  defendant  is  a  broker  accustomed  to  the 
use  and  transportation  of  money,  and  it  must  be  presumed  he  is  a 
person  of  ordinary  diligence.  He  kept  his  own  money  in  the  same 
valise,  and  took  no  better  care  of  it  than  of  the  plaintiff's.  Still,  if 
the  jury  are  of  opinion  that  he  omitted  to  take  that  reasonable  care 
of  the  gold  which  bailees  without  reward  in  his  situation  usually 

118  2  Adol.  &  E.  258.  ii*  8  Mason,  132,  Fed.  Cas.  No.  14,130. 

ULWBAELM. — 6 


66  BAILMRXTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

take  of  such  property  under  such  circumstances,  he  has  been  guilty 
of  gross  negligence." 

Another  reason  has  been  suggested  why  the  care  which  one  takes 
of  his  own  is  an  unjust  criterion  in  this  class  of  cases.  It  is  that  a 
man  may  with  respect  to  his  own  property  encounter  risks  from 
views  of  particular  advantage,  or  from  a  natural  disposition  of 
rashness,  which  would  be  entirely  unjustifiable  in  respect  to  prop- 
erty belonging  to  another,  and  which  he  holds  in  trust.^^"  Though 
there  is  weighty  authority  against  him,  Judge  Story  is  clearly  of 
the  better  opinion  when  he  says:  ^^'  '^Notwithstanding  the  weight 
of  these  authorities,  they  do  not  seem  to  me  to  express  the  general 
rule  in  its  true  meaning.  The  depositary  is,  as  has  been  seen, 
bound  to  slight  diligence  only;  and  the  measure  of  that  diligence 
is  that  degree  of  diligence  which  persons  of  less  than  common  pru- 
dence, or  indeed  of  any  prudence  at  all,  take  of  their  own  concerns. 
The  measure,  abstractly  considered,  has  no  reference  to  the  particular 
character  of  an  individual,  but  it  looks  to  the  general  conduct  and 
character  of  a  whole  class  of  persons."  These  principles  were 
adopted  in  a  leading  Pennsylvania  case,^^^  where  it  was  said  that 
the  question  of  the  bailee's  responsibility  must  be  finally  settled 
by  a  resort  to  the  settled  principle  which  deduces  the  measure  of 
his  duty  in  each  particular  bailment,  from  a  comparison  of  his  con- 
duct with  the  conduct,  not  of  individuals,  but  of  classes  of  men, 
and  the  following  instruction  was  approved:  'Ht  the  bailee  takes 
the  same  care  of  the  goods  bailed  that  he  does  of  his  own,  that 
ordinarily  repels  the  presumption  of  gross  negligence.  The  desire 
to  preserve  one's  own  property  from  loss  from  any  cause  is,  as 
a  rule,  so  universal  that  the  mind  rests  with  satisfaction  on  the 
evidence  which  shows  the  same  care  of  the  bailed  property  which 
the  bailee  took  to  save  his  own,  unless  it  was  shown  that  he  was 
grossly  negligent  of  both;  and,  when  this  is  done,  he  is  not  excused, 
but  held  answerable." 

118  Schouler,  Bailm.  46. 

11*  Story,  Ballm.  §  64. 

11 T  First  Nat.  Bank  of  Carlisle  y.  Graham,  79  Pa.  St.  108. 


§    14]  RIGHTS    AND    LIABILITIES    OF   PARTIES.  67 

Same — Special  Agreement — Knowledge  of  Bailee^  Character  and  Manner  of 

Keeping  Goods. 

The  normal  rule  in  bailments  of  the  present  class  is  that  the 
bailee  is  liable  only  for  gross  negligence.^^'  What  constitutes  gross 
negligence  must  be  determined  with  reference  inter  alia  to  the  bail- 
ment contract  Subject  only  to  the  limitation  that  their  contract 
must  not  be  in  violation  of  law  or  against  public  policy,^ ^*  the  par- 
ties may  vary  their  rights  and  liabilities  at  will.^^"  They  may 
stipulate  for  different  degrees  of  diligence  or  regulate  the  manner 
of  carrying  out  the  bailment.  If  the  bailor  agree  that  his  goods  may 
be  kept  in  a  particular  place  or  manner,  he  cannot  afterwards  object 
that  it  was  negligent  to  keep  them  in  such  place  or  manner,  for 
his  assent  amounts  either  to  a  qualification  of  the  contract  for 
safe  custody,  or  to  an  agreement  that  for  all  the  purposes  of  the 
deposit  the  place  shall  be  deemed  sufiQciently  safe.^^^  So,  also, 
it  is  held  that  where  the  bailor  knows  the  general  character  and 
habits  of  the  bailee,  and  the  place  where  and  the  manner  in  which 
the  goods  deposited  are  to  be  kept  by  him,  the  bailor  must  be  pre- 
sumed to  assent  in  advance  that  his  goods  shall  be  thus  treated; 
and  if,  under  such  circumstances,  they  are  damaged  or  lost,  it  is  by 
reason  of  his  own  fault  or  folly.  He  should  not  have  intrusted 
them  with  such  a  depositary,  to  be  kept  in  such  a  manner  and 
place.^^^  These  principles  were  applied  in  a  case  where  the  bailor 
had  consented  that  his  hay  should  be  stored  on  a  certain  wharf  of 
the  bailee.  The  wharf  was  open  to  the  inspection  of  the  world, 
and  the  bailor  had  the  same  opportunity  to  observe  its  condition  as 

118  A  depositary  must  exercise  the  common  diligence  used  by  depositaries 
In  general.  He  cannot  exempt  himself  from  the  consequences  of  omitting 
such  diligence,  unless  he  deduce  a  more  limited  liability  from  all  the  circum- 
stances of  his  own  particular  case.    Finucane  v.  Small,  1  Esp.  315. 

119  See  ante,  p.  28. 

120  A  carrier  without  hire  Is  liable  on  his  express  promise  to  deliver  safely. 
Delaware  Bank  v.  Smith,  Edm.  Sel.  Cas.  ^N.  Y.)  351.  A  special  acceptance 
to  keep  safely  is  an  undertaking  to  keep  safely  with  reference  to  the  degree 
of  care  which,  under  the  circumstances,  the  law  required  of  the  depositary. 
Ross  V.  Hill,  2  C.  B.  877. 

121  McKay  v.  Hamblin,  40  Miss.  472. 

122  Knowles  v.  Railroad  Co.,  38  Me.  55;  Conway  Bank  v.  American  Bip. 
Co.,  8  Allen  (Mass.)  512;   Arthur  v.  Railway  Co.,  38  Minn.  95,  85  N.  W.  7ia 


68  BAILMEXTS    FOR    SOLE    BENEFIT    OP    BAILOR.  [Ch.   2 

the  bailee.  The  wharf  broke  down  from  overloading.  No  addi- 
tional incumbrance  had  been  placed  on  the  wharf  after  the  arrival 
of  the  hay.  It  was  held  that  the  bailee  was  not  liable.^^'  Where 
knowledge  of  a  general  custom  in  regard  to  such  bailment  can  be 
imputed  to  the  bailor,  he  is  presumed  to  have  consented  that  his 
goods  should  be  kept  in  accordance  with  such  custom.^** 

Same — Bailments  by  Operation  of  Law. 

In  quasi  bailments,  where  one  comes  into  possession  of  goods  law- 
fully, as  by  finding,  he  is  liable  for  gross  negligence  just  as  are 
all  other  bailors  without  recompense.^^"  There  are  some  early 
dicta  to  the  effect  that  such  bailees  are  liable  only  for  distinct 
wrongs  amounting  to  a  conversion,  but  they  have  not  been  approved. 

In  quasi  bailments,  where  one  comes  into  possession  of  goods 
through  a  wrong,  as  by  conversion,  he  is  strictly  liable,  irrespective 
of  the  question  of  negligence.  By  wrongfully  taking  possession 
of  the  goods,  he  becomes  an  insurer  against  loss.^^' 

Same — Bailments  Demanding  Skill. 

Where  a  bailment  is  of  such  a  character  that  its  acceptance  neces- 
sarily involves  an  assumption  of  skill,  failure  to  exercise  such  skill 
may  constitute  gross  negligence."^     In  such  cases  the  skill  of  the 

128  Knowles  v.  Railroad  Co.,  38  Me.  55. 

12*  Cf.  Conway  Bank  v.  American  Exp.  Co.,  8  Allen  (Mass.)  512;  Kelton  v. 
Taylor,  11  Lea  (Tenn.)  264. 

128  Dougherty  v.  Posegate,  8  Iowa,  88;  Mosgrave  v.  Agden,  Owen,  141; 
Drake  v.  Short,  4  Esp.  165.  And  see,  as  to  an  officer  holding  goods  under  an 
attachment,  Parrott  v.  Dearborn,  104  Mass.  104;  Blake  v.  Kimball,  106  Mass. 
115;   Whittier  v.  Smith,  11  Mass.  211;  Jewett  v.  Ton-ey,  Id.  219. 

lae  For  a  full  discussion  of  the  reasons  of  this  strict  liability,  see  post,  p. 
189. 

12T  One  who,  without  any  benefit  to  himself,  rides  a  horse,  at  the  owner's 
request,  for  the  purpose  of  exhibiting  him  for  sale,  is  bound  to  use  such  skill 
as  he  possesses,  and,  if  proved  to  be  skilled  in  horses,  is  equally  liable  with 
a  borrower  for  an  injury  done  to  the  horse.  Wilson  v.  Brett,  11  Mees.  &  W. 
113,  12  Law  J.  Exch.  264.  Where  the  profession  of  the  bailee  implies  skill, 
a  want  of  skill  Is  imputable  as  gross  negligence.  Stanton  v.  Bell,  2  Hawks  (N. 
C.)  145;  GiU  v.  Middleton,  105  Mass.  477;  Eddy  v.  Livingston,  35  Mo.  487, 
493;  Shiells  v.  Biackburne,  1  H.  Bl.  158.  Where  a  farrier,  without  reward, 
offers  to  cure  a  horse  of  a  swelling  on  the  hock  joint,  and  he  makes  the 
puncture  so  unskillfully  that  the  horse  becomes  worthless,  this  act  is  equiva- 
lent to  gross  negligence.     Conner  v.  Win  ton,  8  Ind.  315. 


§    14]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  69 

average  member  of  the  same  profession  or  class  is  the  standard  of 
comparison."*  Less  than  such  average  skill  might  still  be  slight 
skill,  but  a  total  absence  of  all  skill  would  ccM'taiuly  be  gross  negli- 
gence. Lord  Loughborough,  in  Shiells  v.  Blackburne,"^  says:  'T 
agree  with  Sir  William  Jones,  that  where  a  bailee  undertakes  to  per- 
form a  gratuitous  act,  from  which  the  bailor  alone  is  to  receive  bene- 
fit, there  the  bailee  is  liable  only  for  gross  negligence;  but  if  a  man 
gratuitously  undertakes  to  do  a  thing  to  the  best  of  his  skill,  where 
his  situation  or  profession  is  such  as  to  imply  skill,  an  omission  of 
that  skill  is  imputable  to  him  as  gross  negligence."  This  case  is 
cited  in  Stanton  v.  Bell,^^°  where  the  holding  is  to  the  same  effect. 

Same — lAability  for  Sealed  Packages. 

A  question  may  arise  with  respect  to  the  liability  of  a  bailee  for 
the  loss  of  articles  contained  in  a  package,  the  contents  of  which 
are  unknown  to  him.  Knowledge  of  the  contents  is  important  in 
determining  whether  the  bailee  exercised  a  proper  degree  of  dili- 
gence. The  question  admits  of  a  different  determination  according 
to  circumstances.  If  the  bailee  knew  that  the  box  or  casket  con- 
tained jewels,  although  the  bailor  took  away  the  key,  he  would  be 
bound  to  a  degree  of  diligence  proportioned  to  the  value  of  the  con- 
tents. Li  other  words,  the  same  degree  of  care  which  would  or- 
dinarily be  required  to  be  taken  of  such  valuables  when  deposited 
would  be  exacted  of  him.  If  he  had  no  ground  to  suppose  that  the 
box  or  casket  contained  any  valuables  whatsoever,  he  would  be 
bound  only  to  such  reasonable  care  as  would  be  required  of  de- 
positaries in  cases  of  articles  of  common  value;  ^"  but,  if  guilty  of 
gross  negligence  under  such  circumstances, — that  is,  if  liable  at  all, 
—he  would  be  liable  for  the  full  value  of  the  contents,  for,  the  loss 
being  a  direct  one,  actual  anticipation  of  its  extent  is  immaterial.^" 
n,  on  the  other  hand,  there  was  a  meditated  concealment  of  the 

128  First  Nat.  Bank  of  Carlisle  v.  Graham,  79  Pa,  St.  106;  Shiells  y.  Black- 
burne,  1  H.  Bl.  1.58. 

129  1  H.  Bl.  158. 

180  2  Hawks  (N.  O.)  145.    See,  also,  Conner  v.  Winton,  8  Ind.  815. 

131  Story,  Bailm.  §  77. 

182  Little  V.  Railway  Co.,  66  Me.  239;  Mather  v.  American  Exp.  Co.,  138 
Mass.  55.  And  see  France  v.  Gaudet,  L.  R.  6  Q.  B.  199;  WUson  y.  Railway 
Co.,  9  C.  B.  (N.  S.)  632. 


70  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.    2 

contents  of  the  box  or  casket  from  the  bailee,  with  a  view  to  induce 
him  to  receive  the  bailment,  and  he  would  not  have  received  it  or 
have  exposed  it  as  he  did  if  he  had  been  made  acquainted  with  the 
facts,  then  the  transaction  would  be  deemed  a  fraud  upon  him,  or, 
at  least,  the  loss  would  be  deemed  one  occasioned  by  the  bailor's 
own  folly  or  laches;  and  the  bailee  w^nld  no^,  ey^p  in  a  case  of 
gross  negligence,  be  responsible  beyond  the  value  of  the  box_or 
casket  itself^  without  the  contents,  and  perhaps  not  even  for  that.^^'^ 

Same — Illustrative  Gases. 

In  one  of  the  earliest  English  cases  reported,^'*  a  man  who  under- 
took to  keep  100  sheep  was  held  liable  when  they  were  drowned,  on 
the  ground  that  a  trust  voluntarily  undertaken  was  good  ground  for 
the  action.  The  preceding  case  was  cited  in  Coggs  v.  Bernard.^*" 
The  declaration  in  the  latter  case  was  that  the  defendant  had  under- 
taken safely  and  securely  to  take  up,  and  safely  and  securely  to  de- 
posit, certain  hogsheads  of  brandy,  from  one  cellar  to  another,  and 
that  this  was  done  so  negligently  and  carelessly  that  by  the  defend- 
ant's want  of  care,  or  that  of  his  agents  or  servants,  a  hogshead  was 
staved,  and  a  quantity  of  brandy  was  spilt  After  a  verdict  for  the 
plaintiff,  a  motion  in  arrest  of  judgment  was  made  on  the  ground 
that  it  was  not  alleged  that  the  defendant  was  a  common  porter,  nor 
that  he  had  received  any  consideration  for  his  pains.  Lord  Holt 
held  the  defendant  liable  by  reason  of  his  neglect  in  the  perform- 
ance of  his  agreement,  but  also  held  that,  had  the  accident  hap- 
pened by  the  act  of  a  third  party  without  fault  in  the  defendant, 
the  latter  would  not  have  been  liable.  The  fact  that  the  owner 
of  the  brandy  had  trusted  the  defendant  with  it  was  held  to  be 
sufficient  to  impose  the  duty  of  careful  management  upon  the 
bailee,  where  the  latter  had  actually  entered  upon  the  discharge 
of  the  agreed  duty,  though  he  need  not  have  so  undertaken.  (Here 
the  case  is  cited  of  a  carpenter  who  undertook  to  build  a  house 
within  a  certain  time,  and  failed  to  do  so,  in  which  it  was  held  that 

i8«  Batson  v.  Donovan,  4  Barn.  «&  Aid.  21;  Sleat  v.  Fagg,  5  Barn.  &  Aid. 
842;  Bradley  v.  Waterhouse,  1  Moody  &  M.  154;  Gibbon  v.  Paynton,  4  Bur- 
rows, 2298;  Warner  v.  West.  Transp.  Co.,  5  Rob.  (N.  Y.)  490;  Orange  Co. 
Bank  v.  Brown,  9  Wend.  (N.  Y.)  85.     And  see  Civ.  Code  Cal,  S  1840. 

18*  1  RoUe,  Abr.  10;   2  Hen.  VII.  11. 

188  2  Ld.  Raym.  909. 


§    11]  RIGHTS    AND    LIABILITIES    OF    PARTIES.  71 

an  action  would  not  lie,  though,  had  the  question  been  one  of 
unskillfulness,  an  action  might  have  been  maiitained.)^^^  And  so  a 
bare  being  trusted  with  another's  goods  must  be  taken  to  be  a  sufB- 
cient  consideration  if  the  bailee  once  enter  upon  the  trust,  and  take 
the  goods  into  his  possession.* 

As  an  instance  in  which  a  gratuitous  bailee  was  exonerated  from 
responsibility  for  the  loss  of  the  thing  bailed  to  him,  the  case  of 
Spooner  v.  Mattoon  ^^^  may  be  noticed.  In  this  case  it  appeared 
that  the  plaintiff,  a  soldier,  had  been  accustomed  to  leave  his  pocket- 
book  each  night  with  a  friend  tenting  near  him,  and  to  receive  it 
again  the  next  day.  Upon  one  occasion  he  failed  to  call  as  usual, 
and  the  bailee,  not  being  able  to  wait,  started  to  deliver  it  to  him. 
Not  being  able  to  get  the  book  in  his  pocket,  the  bailee  placed  it 
under  his  vest,  holding  his  hand  upon  it  on  the  outside  of  the 
vest.  While  thus  carrying  it,  the  pocketbook  was  lost.  In  the 
action  against  him  by  the  bailor,  the  defendant  was  held  not  liable, 
on  the  ground  that  he  had  acted  with  that  measure  of  diligence 
demanded  from  a  gratuitous  bailee. 

Same — Case  Illustrating  Effect  of  Local  Ciistom. 

As  showing  the  effect  of  local  custom  upon  the  care  demanded 
from  the  bailee,  the  case  of  Eddy  v.  Livingston  ^«*  is  in  point.  Here 
it  was  shown  that  money  had  been  deposited  with  a  gratuitous  bailee 
in  Utah  to  be  sent  to  a  party  in  St.  Louis.  There  being  no  bankers 
in  the  bailee's  place  of  residence,  it  was  the  custom  in  remitting 
money  for  several  persons  together  to  buy  di-afts  of  United  States 
officers  upon  the  department.  The  bailee  took  the  money  held  by 
him,  with  money  of  his  own,  and  of  other  persons,  and  bought  the 
draft  of  a  United  States  marshal  upon  the  treasury  department, 
which  draft  was  refused.  The  bailee,  having  in  good  faith  made 
use  of  the  usual  method  of  transmitting  money,  was  held  not  liable 
to  the  bailee  for  the  loss  of  the  money  of  the  latter. 

"«  11  Hen.  IV.  c.  33. 

*  For  other  illustrations  of  what  constitutes  grross  negligence,  see  Joslyn  v. 
King,  27  Neb.  38,  42  N.  W.  756;  Gray  v.  Merriam,  148  IIL  179,  35  N.  E.  810; 
Pfather  v.  Kean,  29  Fed.  498. 

137  40  Vt.  300. 

188  35  Mo.  487. 


72  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch-  2 

Same — Case  Illustrating  Effect  of  a  Second  Bailment. 

In  Fulton  v.  Alexander/*®  the  defendant,  as  bailee,  received  a 
package  of  money  to  be  gratuitously  delivered  by  him  in  New  Or- 
leans, whither  he  was  going.  Owing  to  an  epidemic  prevalent  in 
that  city  upon  his  arrival,  the  bailee  did  not  consider  it  safe  to  re- 
main, but  deposited  the  money,  together  with  some  of  his  own,  with 
a  firm  of  good  standing,  with  whom  he  was  in  the  habit  of  doing 
business,  to  be  by  them  delivered  to  H,,  for  whom  it  w^as  intended. 
Several  attempts  were  made  by  the  firm  to  deliver  the  money  to 
H.,  without  success,  and  he  was  finally  notified  that  the  money  was 
deposited  for  him.  He  failed  to  call  for  it  until  the  firm  had  failed, 
and  he  was  then  unable  to  obtain  it.  In  an  action  against  the 
first  bailee,  it  was  held  that,  since  the  trust  was  gratuitous,  the 
bailee  was  liable  only  for  good  faith  and  ordinary  diligence,  and 
that,  under  the  circumstances,  gross  negligence  could  not  be  im- 
puted to  him. 

Same — lUtcstrative  Cases  of  Special  Bank  Deposits. 

In  regard  to  the  liability  of  banks  for  special  deposits  gratuitously 
received  by  them,  the  leading  case  is  Foster  v.  Essex  Bank.^*" 
In  this  case  the  testator  of  the  plaintiff  had  left  with  the  bank  for 
safe-keeping  a  quantity  of  gold,  and  had  received  from  it  a  memo- 
randum signed  by  the  president  and  cashier.  This  gold  was  fraud- 
ulently taken  by  the  cashier,  but  the  bank  was  held  not  liable  to 
the  plaintiff  for  the  value  of  the  gold.  The  act  of  the  cashier  was 
considered  to  be  that  of  a  thief,  and,  as  such,  his  employers  could 
not  be  held  responsible  for  his  actions  outside  of  his  proper  au- 
thority.^*^ The  bank  was  acquitted  of  all  negligence  in  employing 
the  cashier  or  in  inspecting  his  accounts. 

189  21  Tex.  148.     See,  also,  Klrtland  v.  Montgomery,  1  Swan  (Tenn.)  452, 

1*0  17  Mass.  479. 

1*1  In  this  class  of  cases  is  very  often  Involved  the  question  of  the  respon- 
sibility of  a  coi-poration  for  the  acts  of  its  servants  or  agents,  and  It  is  usually 
held  that  where  an  agent  is  acting  in  the  usual  transaction  of  his  employer's 
business,  no  personal  responsibility  attaches  to  such  agent;  but  when  he  acts 
in  a  way  beyond  the  scope  of  the  duty  for  which  he  was  employed,  and  does 
so  without  his  employer's  sanction,  he  alone  will  be  liable.  Upon  this  point 
see  Story,  Ag.  §§  74,  75,  239;  Smith,  Mast.  &  S.  123,  126.  These  cases  are 
not  free  from  doubt.    The  cashier  was  acting  in  the  course  of  his  employ- 


§    1'5]  TERMINATION    OF    BAILMENT.  73 

In  the  case  of  Scott  v.  National  Bank  of  Chester  Valley,^*'  the 
teller  absconded  with  bonds  which  had  been  deposited  in  the  bank. 
It  was  held  that  the  bank  was  not  liable,  since  there  was  no  proof 
of  gross  negligence  on  the  part  of  the  corporation.  In  his  opinion, 
Agnew,  C.  J.,  said:  "There  was  no  undertaking  to  the  bailor  that 
the  officers  should  not  steal.  *  •  ♦  The  case  does  not  rest  on  a 
warranty  or  undertaking,  but  on  gross  negligence  in  care-taking. 
Nothing  short  of  a  knowledge  of  the  true  character  of  the  teller,  or 
of  reasonable  grounds  to  suspect  his  integrity,  followed  by  a  neglect 
to  remove  him,  can  be  said  to  be  gross  negligence,  without  raising 
a  contract  for  care,  higher  than  a  gratuitous  bailment  can  create," 

TERMINATION  OF  [^llLOTENT. 

15.  Bailments  for  the  sole  benefit  of  the   bailor   may  be 
terminated — 

(a)  By  full  performance  (p.  73). 

(b)  By  mutual  consent  (p.  73). 

(c)  At  option  of  either  party,  except — 

EXCEPTION — Where  something  precise  was  to  be  ac- 
complished, the  bailee,  having  entered  upon  per- 
formance, must  complete  it  (p.  74). 

(d)  By  bailee's  -wrong  (p.  75). 

(e)  By  death  of  either  party  (p.  76). 

(f )  By  bankruptcy  (p.  77). 

(&)  By  change  of  state  of  parties  (p.  77). 

Termination  by  Full  Performance. 

As  a  matter  of  course,  upon  the  accomplishment  of  the  purpose 
for  which  the  bailment  was  constituted,  the  bailment  comes  to  a 
natural  end.  All  that  remains  to  be  done  is  to  redeliver  or  deliver 
over  the  goods  in  accordance  with  the  bailment  contract. 

Termination  by  Mutual  Consent. 

Bailments  may  also  be  terminated  at  any  time  by  the  mutual 
assent  of  the  parties  thereto.     In  this  respect  the  bailment  contract 

ment,  if  not  in  the  scope  of  it    See  1  Jag.  Torts,  p.  251;   Schouler,  Dom.  Rel. 
§  489.    See,  also,  ante,  p.  48,  note  52. 
14  2  72  Pa.  St.  471. 


74  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Cll.    2 

is  like  all  other  contracts.  They  are  always  under  control  of  the 
parties  who  made  them.  The  parties  cannot  tie  their  own  hands. 
The  power  that  created  may  likewise  destroy.^*^  So  a  gratuitous 
bailment  may  be  changed  into  one  for  mutual  benefit,  or  an  entirely 
different  arrangement  may  be  substituted  for  the  bailment  rela- 
tion ;  as  where,  after  making  a  special  deposit  of  money,  the  parties 
agree  that  the  depositary  shall  pay  the  depositor  interest  thereon. 
This  has  been  held  to  change  the  bailment  relation  into  one  of  debt- 
or and  creditor.*** 

Termination  at  Option  of  Either  Party. 

Bailments  of  every  class  may  be  terminated  by  full  performance 
or  by  mutual  assent.  But  bailments  for  the  sole  benefit  of  the 
bailor  may,  with  few  exceptions,  be  also  terminated  by  either  party 
alone  at  his  option.  Thus,  if  a  deposit  is  made  to  be  restored  at  a 
future  time,  it  may  be  immediately  demanded  back  by  the  depositor; 
for,  as  the  depositary  has  no  interest  in  the  custody,  he  can  have 
no  right  to  retain  the  thing  against  the  will  of  the  depositor.  If 
the  bailee  was  to  derive  a  benefit  from  the  custody,  the  bailment 
would  not  belong  to  this  class.**"  So,  also,  in  the  case  of  mandates, 
where  the  thing  is  to  be  delivered  to  a  third  person,  if  the  latter  has 
no  vested  interest  in  it,  the  bailor  may  revoke  the  bailment  at  any 
time.**"  On  this  principle,  it  was  said  In  a  New  Hampshire  case 
that  a  party  who  deposits  money  with  another,  to  be  appropriated 
for  the  benefit  of  a  third  person,  being  under  no  legal  obligation 
to  so  appropriate  it,  has  a  right  to  countermand  the  appropriation, 
and  recall  the  money  at  any  time  before  it  has  been  actually  appro- 
priated, or  before  such  an  arrangement  has  been  entered  into  be- 
tween the  depositary  and  the  person  for  whose  benefit  it  was  de- 
posited as  creates  a  privity  between  them  and  amounts  to  an  ap- 

1*8  Clark,  Oont.  608. 

1*4  Howard  v.  Raeber,  33  Cal.  899;  Hathway  v.  Brady,  26  Cal.  581;  Chiles 
V.  Garrison,  32  Mo.  475;  Rankin  v.  Craft,  1  Heisk.  (Tenn.)  711;  Cicalla  v. 
Rossi,  10  Heisk.  (Tenn.)  67. 

1*0  Graves  v.  Ticloior,  6  N.  H.  537;  Beardslee  v.  Richardson,  11  Wend. 
(N.  Y.)  25. 

148  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Salt  v.  Field,  5  Term 
R.  211.  The  revocation  need  not  be  express,  but  may  be  implied.  Copeland 
V.  Insurance  Co.,  supra. 


§    15]  TERMINATION    OF    BAILMENT.  76 

propriation  of  it.  Anything  short  of  this  is  immaterial  and  unim- 
portant, so  far  as  concerns  the  depositor's  right  to  recall  and  re- 
cover back  his  money.^*^  Where  the  bailor  wishes  to  terminate  the 
bailment,  he  should  jmake  a  demand^s  a  jemand  and  a  refusal  are 
ordinarilY  evidence  of  conversion.  If  the  bailee  improperjyjafi^sea 
to  redeliver  the  goods  when  demanded,  he  henceforth  holds  then//^ 
at  his  own  peril.  If,  therefore,  they  are  afterwards  lost,  either, 
negligence  or  inevitable  accident,  he  is  liable.  The  demand  fixes 
liability.^*'  However,  when  the  circumstances  show  that  fl,  fjpTnnnfi 
would  be  wholly  futile,  none  need  be  made.^*"  A  demand  and  a 
refusal  are  not  the  only  evidence  of  a  conversion. 

A  bailee  without  hire  is  ordinarily  not  bound  to  keep  articles 
deposited  with  him.  He  may  terminate  the  bailment  by  giving  the 
bailor  notice  to  remove  the  goods,  and  allowing  him  a  reasonable 
time  in  which  to  do  so.  If,  upon  tender  of  the  goods,  the  owner 
refuses  to  take  them  away,  the  bailee  may  place  them  off  from  his 
premises.^ °*'  This  right  of  the  bailee,  however,  is  subject  to  an 
exception.  When  something  definite  was  to  be  accomplished,  as 
where  goods  were  to  be  kept  for  a  fixed  time  or  certain  services  were 
to  be  performed  about  them,  the  bailee  cannot  terminate  the  bail- 
ment before  full  performance,  after  he  has  once  entered  upon  its 
execution.  In  such  cases  a  termination  of  the  bailment  without 
consent  of  the  bailor  would  constitute  a  breach  of  contract,  for 
which  he  would  be  liable  in  damages.^ "^^ 

Termination  by  Bailee's  Wrong. 

A  conversion  by  the  bailee  of  the  property  intrusted  to  him  will 
justify  the  bailor  in  treating  the  bailment  as  at  an  end,  though  the 

1*7  Winkley  v.  Poye,  33  N.  H.  171. 

1*8  Emerick  v.  Chesrown,  90  Ind.  47;  Zuck  v.  Gulp,  59  Gal.  142;  Stewart 
V.  Frazier,  5  Ala.  114;  Hosmer  v.  Clarke,  2  Greenl.  (Me.)  308;  Montgomery 
V.  Evans,  8  Ga.  178;  McLain  v.  Huffman,  30  Ark.  428;  Jackman  v.  Partridge, 
21  Vt.  558;  Brown  v.  Gook,  9  Johns.  (N.  Y.)  3G1;  Magee  v.  Scott,  9  Gush. 
(Mass.)   148. 

1*9  First  Nat  Bank  v.  Dunbar,  118  111.  625,  9  N.  B.  186;  Kellogg  v.  Olson, 
84  Minn.  103,  24  N.  W.  364;  Huntsman  v.  Fish,  36  Minn.  148,  80  N.  W.  455; 
Derrick  v.  Baker,  9  Port.  (Ala.)  362. 

160  Raulston  v.  McGlelland,  2  E.  D.  Smith  (N.  Y.)  60. 

iBi  Story,  Bailm.  §  202.    And  see  ante,  p.  54,  "Nonfeasance." 


76  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

wrongful  act  will  not  of  Itself  terminate  the  bailment  to  his  prej- 
udice."" Thus,  where  a  bailee  wrongfully  disposes  of  the  property 
to  a  third  person,  the  statute  of  limitations  does  not  run  against 
an  action  on  the  bailment  contract  until  the  breach  is  discovered.^ "^ 
In  case  of  such  a  conversion,  the  bailor  may,  however,  treat  the 
bailment  as  terminated,  and  recover  the  property  itself  from  whom- 
ever is  in  possession.^ ''^ 

Termmation  by  Death. 

The  bailment  relation  is  in  many  respects  one  of  principal  and 
agent  This  is  especially  apparent  in  considering  the  effect  of  death 
upon  the  relation.  The  death  of  the  bailor  or  principal  at  once 
operates  as  a  revocation  of  authority.  The  rule  is  equally  true  both 
in  cases  of  deposits  and  mandates.  In  either  case,  upon  the  death  of 
the  bailor,  his  representatives  have  an  immediate  right  to  possession. 
In  the  meanwhile  a  quasi  bailment  relation,  in  the  nature  of  a  deposit, 
exists  between  the  bailee  and  the  bailor's  representatives.  Whether 
a  mandatary  who  goes  on  and  performs  the  mandate  after  the  bail- 
or's death,  but  in  ignorance  of  it,  would  be  held  to  a  strict  account- 
ability, as  in  the  case  of  a  wrongdoer,  has  not  been  decided;  but  Mr. 
Schouler  ""^  apprehends  that  'Tie  would  not  be  strictly  dealt  with,  for 
our  modem  inclination  is  to  that  civil  policy  which  upheld  all  the 
acts  performed  in  good  faith  by  an  agent  after  his  principal's  death, 
while  as  yet  not  aware  of  the  fact."  ^^' 

It  is  not  ci-^ar  by  the  authorities  whether  the  death  of  the  bailee 
actually  terminates  the  relation  or  merely  gives  the  bailor  the  right 
to  at  once  terminate  it  and  reclaim  his  property, — a  right  which  he 
already  had,  irrespective  of  the  bailee's  death.  The  true  rule  seemg 
to  be  that,  upon  the  death  of  the  bailee,  if  the  contract  of  bail- 
ment was  such  as  would  survive  and  be  binding  upon  one's  rep- 

102  King  V.  Bates,  57  N.  H.  446;  Crump  v.  Mitchell,  34  Miss.  449;  McMahon 
V.  Sloan,  12  Pa.  St.  229;   Wilkinson  v.  Verity,  L.  R.  6  G.  P.  206^ 

163  Wilkinson  v.  Verity,  L.  R.  6  G.  P.  206;  Grump  v.  Mitchell,  34  Miss.  449; 
McMahon  v.  Sloan,  12  Pa.  St.  229. 

184  King  V.  Bates,  57  N.  H.  446. 

looBailm.  §  6L 

i»«  Cf.  Hunt  V.  Rousmanlere,  8  Wheat.  174;  King  r.  Bedford  Level,  6 
Bast,  356;  Wallace  v.  Cook,  5  Esp.  118;  Cassiday  t,  McKensie,  4  Watts  & 
S.  282;   Carriger  v.  Whittington,  26  Mo.  313. 


§  15]  TERMINATION  OF  BAILMENT,  77 

resentatives,  as  in  the  case  of  ordinary  contracts, — that  is,  when 
it  was  not  founded  on  considerations  of  personal  confidence,  and 
does  not  require  peculiar  skill  in  its  performance, — the  bailee's  rep- 
resentatives are  bound  to  go  on  and  perform  it,  unless  counter- 
manded by.  the  bailor.  If  the  bailor  countermands  his  authority,  or 
if  the  bailment  contract  iirvolves  considerations  of  personal  confi- 
dence and  skill,  the  death  of  the  bailee  discharges  the  contract,  and 
his  representatives  need  not  execute  it  They  hold  the  property 
as  quasi  bailees  in  the  nature  of  depositaries.  If  there  are  joint 
mandataries,  the  death  of  one  of  them  dissolves  the  contract  as  to  all, 
for,  by  the  general  rule  of  the  common  law,  an  authority  to  two  can- 
not be  executed  except  by  both.^^^  As  to  whether  this  rule  would 
apply  in  cases  of  bailments  not  requiring  the  united  advice,  confi- 
dence, and  skill  of  all.  Judge  Story  ^^^  seems  doubtful.  Where  the 
authority  of  the  bailees  is  joint  and  several,  the  death  of  one  does 
not  revoke  the  authority  of  the  others  to  act. 

Termination  by  Bankruptcy. 

Bankruptcy  of  the  bailor  terminates  any  authority  to  a  man- 
datary,^"^ and  the  bailor's  right  to  the  bailed  property  passes  to  his 
assignee.^*"  The  bankruptcy  of  the  bailee  probably  terminates  the 
bailment  also.^®^ 

Termination  by  Change  of  State  of  Parties. 

The  contract  of  mandate  may  be  dissolved  by  a  change  of  the  state 
of  the  parties;  as,  if  either  party,  being  a  female,  marries  before  the 
execution  of  the  mandate,^"^  or  if  either  party  becomes  insane  or  non 
compos  mentis  or  is  put  under  guardianship,  the  mandate  is  re- 
voked.^°^  Pothier  puts  the  case  of  the  marriage  of  the  mandator 
only;  ^°*  but  the  same  rule  would  seem,  ordinarily,  to  apply  to  the 
marriage  of  the  mandatary,  since  her  husband's  rights  may  be  af- 

1B7  Sinclair  v.  Jackson,  8  Cow.  (N,  Y.)  648. 

168  Ballm.  §  202. 

159  Parlier  v.  Smith,  16  East,  382;   Minett  v.  Forrester,  4  Taunt  B41. 

180  Ex  parte  Newhall,  2  Story,  3G0,  Fed.  Cas.  No.  10,159. 

161  Story,  Bailm.  §  211. 

162  See  Story,  Ag.  §§  488-500;  Story,  Bailm.  §  20tt. 

163  Story,  Ag.  §  481. 

16  4  Poth.  Contrat  de  Mandat,  note  111. 


78  BAILMENTS    FOR    SOLE    BENEFIT    OF    BAILOR.  [Ch.   2 

fected  by  her  conduct.^'"'  The  common  law  deems  the  marriage  of  a 
woman  to  be  a  revocation  of  the  antecedent  authorities  conferred  by 
her  on  other  persons,  for  her  acts  may  be  to  the  prejudice  of  the  hus- 
band's rights.^®" 

So,  also,  where  the  bailor  was  acting  in  a  representative  capacity, 
as  executor,  administrator,  or  guardian,  upon  his  death  or  removal  or 
the  expiration  of  his  trust,  his  authority  to  the  bailee  is  revoked  by 
operation  of  law.^'^ 

SAME— REDELIVEEY. 

16.  At  the   termination   of  the  bailment,  the   bailee  must 

redeliver  or  deliver  over  the  property  bailed.  This 
delivery  marks  the  complete  termination  of  the  bail- 
ment, and,  until  it  is  made,  a  bailment  relation  con- 
tinues to  exist. 

17.  The   bailee's  duty  to  deliver  up  the  property  at  the 

termination  of  the  bailment  may  bp  considered 
with  reference  to — 

(a)  The  property  to  be  delivered  (p.  78). 

(b)  The  person    to  -whom   delivery  should   be  made  (p. 

79). 

(c)  The  place  -where  delivery  should  be  made  (p.  80). 

The  Property  to  he  Delivered. 

As  has  been  seen,  a  bailee  is  bound  to  deliver  up  the  goods  at  the 
termination  of  the  bailment,  and,  until  such  delivery  is  made,  he  re- 
mains subject  to  the  liabilities  of  a  bailee.  The  identical  property 
is  to  be  delivered  in  the  condition  in  which  it  is  at  the  termination 
of  the  bailment,  together  with  all  increase  and  profit  derived  from 
i^  168     jf  ^jjg  property  is  injured  or  even  lost  or  destroyed  entirely, 

i«5  See  Story,  Ag.  §  481;  2  Kent,  Comm.  (4tli.  Ed.)  lect.  41,  p.  645. 

186  2  Rop.  Husb.  &  Wife,  69,  73;  2  Kent,  Comm.  (4th.  Ed.)  lect.  41,  p.  6i5; 
Story,  Ag.  §  481. 

187  Story,  Bailm.  §  207. 

188  If  an  animal  deposited  brings  forth  young,  the  latter  must  also  be  re- 
stored to  the  owner.  He  must  deliver  it  in  the  state  In  which  he  received 
It,  with  the  profits  and  the  increase,  and  if  he  fails  in  either  of  these  respects 
he  is  liable.     Game  v.  Harvie,  Yel.  50;   Ck)de  La.  art  2919. 


?§    10-17]  TKRMINATION    OF    BAILMENT REDI-:LIVERY.  79 

when  the  time  comes  to  deliver  it  up,  the  bailee  is  responsible  only 
when  such  loss  or  injury  is  due  to  his  gross  negligence  or  bad  faith. 
If  the  goods  are  taken  from  the  bailee  by  regular  and  valid  proceed- 
ings at  law,  it  is  a  good  defense  to  an  action  by  the  bailor  for  their 
nondelivery.^^® 

To  Whom  Delivery  should  be  Made. 

At  the  termination  of  the  bailment,  the  property  should  ordinarily 
be  redelivered  or  delivered  over,  in  accordance  with  the  terms  of 
bailment.^^"  When  the  bailee  redelivers  to  his  bailor  without  no- 
tice of  any  adverse  claim,  he  will  be  protected  from  liability;   but, 

i«»  See  Bliven  v.  Railway  Co.,  36  N.  Y,  403;  Burton  v.  Wilkinson,  18  Vt. 
186.  A  depositary  may  set  up  a  seizure  of  tlie  goods  uuder  an  attacliment 
against  third  persons.  Stiles  v.  Davis,  1  Black  (U.  S.)  101.  But  see  Ware- 
ham  Bank  v.  Burt,  5  Allen  (Mass.)  113.  He  can  also  set  up  that  the  goods 
were  forcibly  taken  from  him  without  his  fault  Watkius  v.  Roberts,  28  Ind. 
167.  If  the  property  is  legally  taken  from  the  depositary  by  process  of  law, 
or  if  the  deposit  is  recovered  by  paramount  title  by  third  party,  the  former 
is  absolved  from  responsibility.  Edson  v.  Weston,  7  Cow.  (N.  Y.)  278;  Shel- 
bury  V.  Scotsford,  Yel.  23;  Biddle  v.  Bond,  34  Law  J.  Q.  B.  137;  Wilson  v. 
Anderton,  1  Barn.  &  Adol.  450;  The  Idaho,  93  U.  S.  575.  If  a  coroner  find 
property  on  the  person  of  one  deceased  which  belongs  to  another,  it  is  the 
coroner's  duty  to  deliver  it  to  the  true  owner.  He  cannot  set  up  title  in  the 
administrator.  Smiley  v.  Allen,  13  Allen  (Mass.)  465.  A  bailee  cannot  set 
up  title  in  himself  to  justify  his  refusal  to  return.  Simpson  v.  Wrenn,  50 
111.  222;  Nudd  v.  Montayne,  38  Wis.  511.  When  the  depositor  becomes  a 
bankrupt.  See  Lain  v.  Gaither,  72  N.  C.  234.  Where  an  owner  gives  a  re- 
ceipt for  property  to  an  officer  who  has  seized  It  under  process,  he  cannot  set 
up  title  in  himself  until  he  has  restored  it  to  the  ofllcer.  Brusley  v.  Hamil- 
ton, 15  Pick.  (Mass.)  40.  If  a  depositary  gives  a  receipt  to  a  third  party,  ac- 
knowledging that  he  received  the  property  from  him,  it  Is  equivalent  to  a 
conversion.  Halbrook  v.  Wight,  24  Wend.  (N.  Y.)  169.  If  a  depositary  re- 
ceives money  from  a  depositor  In  fraud  of  the  latter's  creditors,  he  cannot 
set  up  that  fact  in  defense  of  an  action  by  the  depositor  or  his  assignee, 
when  the  creditors  have  taken  no  steps  to  avoid  the  transaction.  Brown  v. 
Thayer,  12  Gray  (Mass.)  1;  Hendricks  v.  Mount,  5  N.  J.  Law,  850.  The  de- 
positaries of  a  fund  are  not  liable  for  paying  a  draft  drawn  on  them  by  its 
apparent  owner  before  they  had  any  knowledge  of  the  fact  that  a  third  per- 
son had  an  interest  in  such  fund.  Morrison  v.  Ashbum  (Tex,  Civ.  App.)  21 
S.  W.  993. 

170  Burton  V.  Baughan,  6  Car.  &  P.  674;  Smiley  v.  Allen,  13  Allen,  46.^; 
Chattahoochee  Nat.  Bank  v.  Schley,  58  Ga.  369. 


80  BAILMENTS    FOR   SOLE    BENEFIT    OF   BAILOR.  [Ch.   2 

if  he  delivers  the  property  to  his  bailor  in  disregard  of  a  third  per- 
son's claim  of  title,  he  does  so  at  his  peril.  The  rights  and  liabili- 
ties of  a  gratuitous  bailee  under  such  circumstances  are  not  differ- 
ent from  those  of  any  other  bailee  under  similar  circumstances,  and 
have  already  been  sufficiently  considered.^ ^^ 

Place  Where  Delivery  shall  be  Made. 

If  the  bailment  contract  provides  where  the  property  bailed  shall 
be  redelivered,  that,  of  course,  governs.  If  it  does  not,  much  will 
depend  upon  the  particular  circumstances  of  the  case  and  the  pre- 
sumed intention  of  the  parties.  It  is  difficult  to  lay  down  any  gen- 
eral rule.  On  the  theory  that  a  bailee  without  reward  ought  to  be 
given  as  little  trouble  as  possible,  the  place  of  deposit  will  be  con- 
sidered the  place  for  delivery,  unless  some  other  is  agreed  upon  or 
may  be  implied  from  the  nature  of  the  transaction.^^'  In  the  case 
of  a  mandate  to  transport  goods,  the  place  of  surrender  would  al- 
most necessarily  be  provided  for.  In  the  case  of  a  mandate  to  per- 
form work  and  labor  about  the  goods,  the  place  where  they  are 
kept  by  the  bailee  would  probably  be  the  place  for  surrender,  un- 
less some  other  place  was  so  obviously  more  convenient  that  the 
parties  may  be  presumed  to  have  intended  a  delivery  at  the  latter 
place. 

1"!  Ante,  p.  30.  A  mere  depositary  Is  not  liable  to  an  action,  until  refusal 
to  deliver  up  on  demand.  West  v.  Murph,  3  Hill  (S.  C.)  284;  Hill  v.  Wiggin, 
31  N.  H,  (11  Fost.)  292;  Brown  v.  Cook,  9  Johns.  (N.  Y.)  361;  Phelps  v.  Bost- 
wick,  22  Barb.  (N.  Y.)  814;  Duncan  v.  Magette,  25  Tex.  245;  Jackman  v. 
Partridge,  21  Vt.  558.  A.  deposited  money  with  B.,  to  be  paid  to  O.  when  A. 
should  have  satisfied  himself  of  a  fact  connected  with  the  deposit.  Held, 
that  no  duty  rested  upon  B.  to  inquire  whether  the  fact  had  occurred;  and 
in  a  suit  by  C.  against  B.  to  recover  the  money,  evidence  was  Inadmissible 
to  show  that  A.  had  declared  himself  satisfied  of  the  fact,  unless  such  decla- 
ration had  been  made  known  to  B.  before  the  suit  Carle  v.  Bearce,  33  Me. 
337.  Where  one  as  a  bailee  without  hire  receives  money  to  deliver  to  an- 
other, there  is  an  implied  contract  that  he  shall  deliver  It,  or  return  It,  or 
account  for  it  In  a  reasonable  time.     Graves  v.  TIcknor,  6  N.  H.  537. 

1T2  Scott  V.  Crane,  1  Conn.  255;  Slingerland  r.  Morse,  8  Johns.  870;  Mason 
V.  Briggs,  16  Mass.  453.  A  demand  for  the  return  may  be  made  elsewhere. 
Dunlap  y.  Hunting,  2  Denio,  643;  Scott  y.  Crane,  1  Conn.  255. 


§§    18-19]  BAILMENTS    FOR    THE    BAILEE'S   SOLE    BENEFIT.  81 

CHAPTER  m. 

BAILMENTS  FOR  THE  BAILEE'S  SOLE  BENEFIT. 

"18-19.    Commodatum. 

20.  Establishment  of  Relation. 

21.  Rights  and  Liabilities  of  Parties. 

(a)  Ordinary  and  Extraordinary  Expenses. 

(b)  Liability  of  Lender  for  Defects. 

(c)  Fraud  in  Procuring  Loan. 

(d)  Right  to  Use. 

(e)  Right  of  Action  against  Third  Persona. 

(f)  Liability   for   Negligence, 

22.  Termination  of  Loan. 

23.  Redelivery. 

COMMODATUM. 

18.  Bailments  for  the  sole  benefit  of  the  bailee  correspond 

to  the  Boman  commodatum. 

19.  A  commodatum  is  a  bailment  for  the  temporary  bene- 

ficial use  by  the  bailee,  gratis,  of  a  chattel,  Tvhich 
the  bailee  must  afterw^ards  return.  In  short,  it  is 
a  loan  for  use. 

In  the  modern  classification  of  bailments,  bailments  for  the  sole 
benefit  of  the  bailee  correspond  exactly  with  the  Roman  commoda- 
tum. In  this  class  of  bailments  the  sole  benefit  is  received  by  the 
bailee,  consisting  in  the  use  of  the  article  bailed,  and  the  bailor  is 
wholly  without  reward.^     In  substance,  the  Roman  commodatum  is 

lAccording  to  Sir  William  Jones  (Bailm.  118),  "lending  for  use  Is  a  bailment  of 
a  thing  for  a  certain  time,  to  be  used  by  the  borrower  without  paying  for  It."  The 
civil-law  definition  Is  that  it  is  the  grant  of  a  thing  to  be  used  by  the  grantee 
gratuitously  for  a  limited  time,  and  then  to  be  specifically  returned.  Story, 
Bailm.  §  219.  In  the  words  of  Chancellor  Kent  (2  Comm.,  IBth  Ed.,  573),  It  is 
"a  bailment  or  loan  of  an  article  for  a  certain  time,  to  be  used  by  the  borrower 
without  paying  for  the  use."  According  to  Aylifi'e  (Pand.  bli.  4,  tit.  16,  p.  516), 
"It  is  a  grant  of  something  made  in  a  gratuitous  manner  for  some  certain  use, 
and  for  a  certain  term  of  time,  expressed  or  Implied,  to  the  end  that  the  same 

LAW  BAILM. — 6 


82  BAILMENTS    FOR    THE    BAILEe's    SOLE    BENEFIT.  [Ch.   3 

simply  the  loan  of  a  chattel  to  be  used  by  the  bailee  temporarily  for 
his  own  benefit,  and  then  returned  to  the  bailor.  In  Roman  juris- 
prudence there  were  two  kinds  of  bailments  for  the  sole  benefit  of 
the  bailee, — the  commodatum  and  the  mutuum;  the  distinguishing 
feature  between  them  being  that,  in  the  case  of  a  commodatum,  the 
identical  thing  loaned  was  to  be  returned,  while  in  the  case  of  a 
mutuum  the  loan  might  be  repaid  in  other  articles  of  the  same  kind. 
The  loan  of  articles  whose  use  consisted  in  their  consumption  would 
necessarily  be  a  mutuum  or  a  gift.  It  has  been  seen  that  at  com- 
mon law  the  mutuum  is  not  considered  a  bailment  at  all.^  A  loan 
of  articles  to  be  consumed  in  the  use,  if  for  the  sole  benefit  of  the 
bailee,  could  not  well  be  other  than  a  gift.^ 

The  English  terms  "loan"  or  "lendiug"  are  not  an  accurate  trans- 
species  should  be  again  returned  or  restored  again  to  us,  and  not  another 
species  of  the  same  kind  or  nature;  and  this  in  as  good  a  plight  as  when 
delivered  to  us."  In  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  913,  Lord  Holt  says 
that  a  commodatum  arises  "when  goods  or  chattels  that  are  useful  are  lent 
to  a  friend,  gratis,  to  be  used  by  him." 

Of  the  modem  authors,  the  definition  of  Schouler  is  worthy  of  attention. 
In  this  he  saj's:  "We  may  define  the  bailment  as  one  for  the  temporary  bene- 
ficial use,  gratis,  of  a  chattel  which  the  bori'OAver  must  return."  A  loan  of 
property  on  condition  that  it  shall  be  turned  into  a  sale  if  certain  payments 
are  made  does  not  subject  the  property  in  hands  of  the  bailee  to  levy  for 
the  debts  of  the  bailee.  Clark  v.  Jack,  7  Watts  (Pa.)  375.  Where  a  slave 
is  placed  by  his  owner  in  the  possession  of  a  third  person,  "to  take  care  of 
him,  keep  him  until  called  for,  and  pay  nothing  for  his  hire  during  the  time 
he  might  have  him,"  this  is  a  mere  deposit,  and  does  not  amount  to  a  con- 
tract of  hiring.  Farrow  v.  Bragg,  30  Ala.  261.  For  transactions  held  to  be 
loans,  and  not  gifts  or  sales,  see  Smith  v.  Jones,  8  Ark.  109;  Boswell  v.  Clark- 
sons,  1  J.  J.  INlarsh.  (Ky.)  47.  And  see  Morris  v.  Caldwell,  3  J.  J.  Marsh. 
(Ky.)  G93;  Breeding  v.  Thrielkeld,  6  J.  J.  Marsh.  (Ky.)  378;  Hinson  v.  Hinson, 
10  La.  Ann.  580;  Williams  v.  McGrade,  13  Minn.  174  (Gil.  165);  Collier  v. 
Poe,  1  Dev.  Eq.  (N.  C.)  55;  Hurd  v.  West.  7  Cow.  (N.  Y.)  752;  Otis  v.  Wood, 
3  Wend.  (N.  Y.)  498. 

See,  also,  Francis  v.  Shradcr,  67  111.  272;  Chamberlin  v.  Cobb,  32  Iowa, 
161;   Carpenter  v.  Branch,  13  Vt.  161. 

2  Ante,  p.  8.  And  see  Hurd  v.  West.  7  Cow.  ^N.  Y.)  752;  Ives  v.  Hartley, 
51  111.  520;  Lonergan  v.  Stewart.  55  111.  44;  Chase  v.  Washburn,  1  Ohio  St. 
244;  Inglebright  v.  Hammond,  19  Ohio,  337;  Carpenter  v.  Grittin,  9  Paige, 
Ch.  (N.  Y.)  310;   Chiles  v.  Garrison.  32  Mo.  475. 

«  But  see  Archer  v.  Walker,  38  Ind.  472. 


§    20]  ESTABLISHMENT    OF    RELATION.  83 

lation  of  the  Roman  "commodatum,"  for,  in  popular  speech,  "loan" 
is  broad  enough  to  include  commodatum  and  mutuum.  A  transac- 
tion is  often  spoken  of  as  a  loan  although  repayment  is  to  be  made 
in  other  articles  of  like  kind,  as  in  the  case  of  loan  of  money,  and 
the  lender  is  to  receive  compensation.  The  term  "loan,"  therefore, 
when  used  to  designate  a  bailment  of  this  class,  must  bo  understood 
to  mean  a  gratuitous  loan,  which  contemplates  the  specific  retui'n  of 
the  thing  loaned. 

ESTABLISHMENT  OF  RELATION. 

20.  In  addition  to  the  general  requisites  of  every  bail- 
ment, it  is  essential  to  the  creation  of  a  bailment 
for  the  bailee's  sole  benefit — 

(a)  That  it  be  created  by  contract  (p.  83). 

(b)  That   it    be   without   intended  compensation   to   the 

bailor  (p.  84). 

(c)  That  it  be  for  the  exclusive  use  of  the  bailee  (p.  85). 

Must  be  Created  by  Contract. 

It  follows  from  the  definition  of  "commodatum"  or  "loan"  that  it 
cannot  be  created  except  by  contract.  Only  by  the  owner's  consent 
can  one  acquire  the  right  to  use  gratuitously  for  his  own  benefit 
another's  property.  Both  parties,  therefore,  must  be  competent  and 
free  to  contract.  Fraud  or  force  will  vitiate  the  contract,  and  may 
render  the  pretended  borrower  criminally  liable  as  well.* 

As  to  the  persons  between  whom  a  gratuitous  loan  may  be  con- 
tracted, in  general,  the  contract  may  arise  between  any  persons  who 
have  a  legal  capacity  to  contract.^  But  in  respect  to  idiots,  luna- 
tics, and  married  women,  at  common  law,  it  cannot  arise,  unless,  in  ■ 
the  latter  case,  it  is  with  the  consent  of  her  husband,  in  which  event 
it  binds  him,  but  not  her.®  In  respect  to  a  minor  the  contract  is 
not  absolutely  void,  but  it  is  voidable  at  his  election.''     The  contract 

i  state  V.  Bryant,  74  N.  C.  124;  Clark,  Cr.  Law,  250. 

6  Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137. 
9  Hagebush  v.  Ragland,  78  111.  40. 

7  See  Vasse  v.  Smith,  6  Cranch,  226;  Campbell  v.  Stakes,  2  Wend.  (N.  Y.) 
137;  Eaton  v.  Hill,  50  N.  H.  235;  Jennings  v.  Rundall,  8  Term  R.  335;  Green 
r.  Greenback,  4  E.  a  L.  877. 


84  BAILMENTS    FOR    THE    BAILEE'S    SOLE    BENEFIT.  [Cll.    3 

must  also  be  of  a  legal  nature;  for,  if  it  is  immoral  or  against  law, 
it  is  utterly  void.  But  on  these  points  we  need  not  dwell,  since 
they  belong  to  the  law  of  contracts  generally.  The  same  principles, 
in  most,  if  not  in  all,  these  respects,  apply  in  the  Roman  and  foreign 
law;*  and  Pothier  deduces  them  from  the  general  analogies  which 
govern  in  other  cases  of  contracts.! 

Where  possession  is  obtained  under  an  invalid  contract,  a  quasi 
bailment  in  the  nature  of  a  depositum  is  created  by  operation  of  law. 

Same —  Consideration . 

A  contract  to  make  a  loan  in  the  future  is,  of  course,  not  binding 
for  want  of  a  consideration.^  After  delivery,  however,  it  seems  that 
the  contract  should  be  held  binding  on  both  parties.  The  loss  of 
an  opportunity  by  the  bailee  to  procure  a  loan  elsewhere  should  be 
a  sufficient  consideration  to  hold  the  bailor  to  his  agreement;  and, 
of  course,  the  use  of  the  property  is  sufficient  to  bind  the  bailee. 
The  point  has  not  been  definitely  decided,  however.  "It  is  surpris- 
ing how  little  in  the  way  of  decision  in  our  courts  is  to  be  found  in 
our  books  upon  the  obligations  which  a  mere  lender  of  a  chattel  for 
use  contracts  towards  the  borrower.  *  *  *  It  may,  however,  we 
think,  be  safely  laid  down  that  the  duties  of  the  borrower  and  lender 
are  in  some  degree  correlative."  ® 

Must  he  mthout  Intended  Covipensation  to  the  Bailor. 

Absence  of  intended  compensation  to  the  bailor  for  the  use  of 
his  chattel  by  the  bailee  is  of  the  essence  of  this  class  of  bailments.} 
Its  gratuitous  nature  is  what  distinguishes  it  from  all  other  bail- 
ments. The  presence  or  absence  of  compensation  determines  the 
measure  of  the  bailee's  liability,  and  furnishes  the  principle  of  the 
modern  classification  of  bailments.  If  any  compensation  is  to  be 
paid  in  any  manner  for  the  use  of  the  property  bailed,  the  bailment 

♦  Story,  Bailm.  §  229. 

t  Poth.  Pret.  a  Usage,  notes  13,  15. 

8  Thorne  v.  Deas,  4  Johns.  (N.  Y.)  84;  Crosby  v,  German,  4  Wis.  373;  Elsee 
V.  Gatward,  5  Term  K.  143;  Shillibeer  v.  Glyn,  2  Mees.  &  W.  143. 

»  Coleridge,  J.,  In  Blakemore  v.  Bristol  &  B.  Ry.  Co.,  8  Bl.  &  Bl.  1035,  1050. 
And  see  Clapp  v.  Nelson,  12  Tex.  370. 

t  Where  valuable  property  is  used  for  a  considerable  time,  a  hiring  and  not 
a  loan  will  be  presumed.  Rider  v.  Rubber  Co.,  28  M.  Y.  879;  CuUen  v.  Lord,. 
89  Iowa,  302. 


§    20 j  LSTABLISHMENT    OF    RELATION.  85 

falls  under  another  denomination, — that  of  hire.  However,  the 
bailee  must  bear  the  ordinary  expenses  incidental  to  the  preserva- 
tion of  the  property  during  the  time  of  the  bailment,^ °  and  the  fact 
that  he  does  so  will  not  change  its  gratuitous  nature.  Thus,  if  a 
horse  is  lent  to  a  friend  for  a  journey,  he  must  bear  the  expenses  of 
his  food  and  shelter  during  that  journey,  and  even  of  getting  him 
shod,  if  necessary;  for  these  are  burdens  naturally  incident  to  the 
use  of  a  horse.^^  However,  where  a  horse  or  other  property  is 
loaned  in  distinct  consideration  of  its  keep,  the  bailment  is  one  for 
hire.^^  The  question  is  one  of  construction  of  the  bailment  contract. 
Where  the  use  of  the  property  was  the  principal  thing  contemplated 
by  the  parties,  and  the  keep  merely  incidental,  the  bailment  is  a  loan. 
Where  the  custody  and  care  of  the  property  was  also  an  object 
aimed  at,  the  bailment  is  one  for  hire. 

Must  be  for  Exchmre  Use  of  Bailee. 

In  gratuitous  loans,  the  use  must  be  the  principal  object,  and  not 
merely  incidental,  and  the  use  must  be  exclusively  for  the  bailee's 
beneS+.  If  the  use  is  for  the  joint  benefit  of  the  borrower  and  the 
lender,  the  bailment  is  not  a  loan,  but  another  species  of  bailment, 
— one  for  hire. 

General  Bequisites. 

As  has  been  seen,  the  absence  of  any  compensation  to  the  bailor 
is  the  distinguishing  feature  of  this  class  of  bailments.  It  follows 
from  this,  as  a  corollary,  that  a  loan  can  never  be  created  by  opera- 
tion of  law,  but  only  by  contract.  In  all  other  respects,  the  princi- 
ples governing  the  formation  of  bailments  in  general  are  applicable 

10  See  post,  p.  87.  - 

11  Bennett  v.  O'Brien,  87  111.  250. 

12  Carpenter  v.  Branch,  13  Vt  161.  "Where  the  owner  of  an  article  of 
property  Is  anxious  to  avoid  the  expense  and  trouble  of  caring  for  It,  at  a 
season  of  the  year  when  Its  use  is  not  more  than  equivalent  to  the  expense 
of  keeping,  and  at  his  solicitation  another  agrees  to  keep  It  for  Its  use,  the 
lender  Is  as  much  accommodated  by  the  transaction  as  the  borrower,  and  the 
benefit  Is  mutual."  ChamberUn  v.  Cobb,  32  Iowa,  161.  In  Neel  v.  State.  83 
Tex.  Cr.  R.  408,  26  S.  W.  726,  it  was  held  that  an  agreement  whereby  a 
person  undertakes  to  make  a  horse  gentle,  and  fit  for  the  use  of  the  owner's 
family,  in  consideration  of  permission  to  ride  it,  is  a  contract  of  hiring,  and  not 
a  gratuitous  loan. 


86  BAILMENTS    FOR    THE    BAILEE'S    SOLE    BENEFIT.  [Ch.    3 

to  loans.^*  Thus,  the  property  loaned  must  be  personalty,  but  may 
be  either  corporeal  or  incorporeal.  Property  consumable  in  use, 
however,  such  as  wine,  corn,  or  money,  cannot  be  gratuitously 
loaned  for  such  use.  It  would  be  impossible  to  return  such  prop- 
erty after  the  fulfillment  of  the  bailment,  and  the  transaction  would 
amount  to  a  gift.  If  the  loan  was  to  be  repaid  in  other  property  of 
like  kind,  it  would  be  a  Roman  rautuum,  or,  at  common  law,  virtu- 
ally a  sale  or  exchange.  Such  property,  however,  may  be  loaned 
for  any  other  use  which  is  consistent  with  its  ultimate  specific  re- 
turn. Thus,  corn  or  wine  might  be  loaned  for  the  purpose  of  being 
pledged  by  the  bailee  to  raise  money.  Delivery  is  as  essential  in 
the  case  of  a  gratuitous  loan  as  it  is  in  the  case  of  a  deposit  or  man- 
date. It  marks  the  inception  of  the  bailment.  Until  the  delivery, 
neither  party  is  bound  by  an  agreement  to  make  a  loan,  for  there  is 
no  consideration.^'  The  rights  and  liabilities  of  the  parties  become 
fixed  immediately  upon  the  delivery  and  acceptance.  The  inten- 
tion of  the  parties  at  that  time  controls  the  character  of  the  bail- 
ment. Absolute  title  in  the  bailor  or  lender  is  not  essential  to  the 
creation  of  a  valid  loan  as  between  the  parties.  A  special  property 
in,  or  even  a  bare  possession  of,  the  thing,  is  sufficient  to  enable  one 
to  make  a  loan  good  as  against  all  the  world  save  the  true  owner. 
The  rule  was  the  same  at  civil  law,  which  held  that  even  a  thief 
might  lend  the  stolen  property,  and  recover  it  back  as  against  every 
one  but  the  rightful  owner.* 

BIGHTS  AND  LIABILITIES  OF  PARTIES. 

21.  While  the  special  contract  in  each  case  is  controlling, 
the  normal  rights  and  liabilities  of  borro^wer  and 
lender  are  as  follow^s: 
(a)  The  borro-wer  must  bear  the  ordinary  expenses  inci- 
dental to  preserving  the  property  while  in  use,  but 
for  any  extraordinary  expense  the  lender  is  liable 
(p.  87). 

14  See  ante,  p.  10. 

16  Thorne  v.  Deas,  4  Johns.  (N.  Y.)  84;   Crosby  v.  German,  4  Wis.  373;   Elsee 
v.  Gatward,  5  Term  R.  143;  Shillibeer  v.  Glyn,  2  Mees.  &  W.  145. 
•  Story,  Bailm.  §  230. 


§    21]  RIGHTS    AND    LIABILITIES    OF    PARTIK3.  87 

(b)  The  lender  is  liable  for  damages  resulting  from  his 

negligence  in  lending  a  defective  article  (p.  88). 

(c)  Fraud  in  procuring  the  loan  renders  the  borro"wer 

liable  as  an  insurer  (p.  88). 

(d)  The  borrower  may  use  the  property  only  for  the  pur- 

pose, at  the  place,  and  in  the  manner  contemplated 
by  the  contract  (p.  89). 

(e)  Either  borrower  or  lender  may  sue  third  persons  for 

w^rongful   interference   with    the    property    loaned 
(p.  90). 

(f)  The  due  care  demanded  from  a  borrower  consists  in 

the    exercise    of   great   or   extraordinary   diligence 
(p.  92). 

The  rights  and  liabilities  of  the  parties  to  a  loan  are  controlled 
by  the  terms  of  the  contract  entered  into  at  the  time  of  the  lending. 
Most  of  what  follows  under  this  head  may  be  regarded  as  general 
principles  of  construction,  which  will  control  in  the  absence  of  any 
express  provision  to  the  contrary.  The  parties  may  vary  their  lia- 
bilities at  will,  provided,  only,  their  contract  is  not  in  violation  of 
law  or  against  public  policy. 

Ordinary  and  Extraordinary  Expenses. 

The  borrower  must  bear  the  ordinary  expenses  Incident  to  the  use 
of  the  thing  loaned,  or  necessary  to  its  due  preservation.^'  Thus, 
where  domestic  animals,  as  horses  or  cattle,  are  loaned,  the  borrower 
must  bear  the  expense  of  feeding  and  caring  for  them,  and,  as  has 
been  seen,  the  benefit  which  the  lender  receives  in  being  relieved  of 
such  burden  is  not  sufficient  to  change  the  gratuitous  nature  of  the 
bailment.^^  Where  extraordinary  and  unusual  expenses  become  nec- 
essary for  the  preservation  of  the  property,  the  lender  must  bear 
them.  If  the  borrower  has  advanced  such  expenses,  the  lender  must 
reimburse  him;  and  it  seems  that  the  borrower  may  bind  the  lender 
by  contract  for  all  necessary  and  reasonable  expenses  in  the  preser- 
vation  of  the  property  beyond  those  incidental  to  ita  ordinary  use.^' 

18  Harrington  v.  Snyder,  3  Barb.  (N.  Y.)  380. 

17  Bennett  v.  O'Brien,  37  111.  250. 

18  Harter  v.   Blanchard,   64  Barb.   (N.   Y.)  617. 


88  BAILMENTS    FOR    THE    BAILEE'S    SOLE    BENEFIT.  [Ch.   3 

Liability  of  Lender  for  Defects. 

It  is  the  duty  of  the  lender  to  warn  the  borrower  of  the  defective 
or  dangerous  nature  of  the  articles  loaned.  He  must  not  expose 
the  borrower  to  danger  from  hidden  faults  without  warning,  and  if 
he  does  so,  and  damage  results,  he  is  liable.  This  liability  does  not 
arise  out  of  the  loan,  but  rests  on  the  general  principles  of  negli- 
gence, and  it  is  common  to  all  classes  of  bailments.^ ^  If  the 
owner  was  unaware  of  such  defects  and  dangers,^**  or  if  they  were 
equally  apparent  to  both  parties,  there  is  no  liability,  for  there  was 
no  duty  to  give  notice  of  the  danger.  It  is  not  wrongful  to  lend  a 
defective  or  dangerous  chattel,  provided  the  circumstances  do  not 
make  it  a  trap. 

Fraud  in  Procuring  Loan. 

Any  fraud  practiced  by  the  borrower  to  procure  the  loan  vitiates 
the  contract.  In  such  a  case  the  owner  has  not  legally  consented  to 
the  taking  and  use  of  his  property.  The  pretended  borrower  is  no 
better  than  a  trespasser. ^^  He  is  therefore  absolutely  liable  for 
the  property,  irrespective  of  the  question  of  negligence.  He  is  an 
insurer  of  safety.  The  fraud  may  be  either  an  express  misrepre- 
sentation or  an  injurious  concealment.  In  the  first  case,  liability  is 
very  clear.  Judge  Story  ^^  gives  as  an  illustration  of  the  doctrine 
of  tacit  fraud  the  following,  taken  originally  from  Pothier:  If  a 
soldier  were  to  borrow  the  horse  of  a  friend  for  a  battle,  expected  to 
be  fought  the  next  morning,  and  were  to  conceal  from  the  lender 
the  fact  that  his  own  horse  was  as  fit  for  the  service,  if  the  bor- 
rowed horse  were  slain  in  the  engagement,  the  borrower  would  be 
responsible,  for  the  natural  presumption  created  by  the  concealment 
is  that  the  horse  of  the  borrower  is  unfit,  or  that  he  has  none.     But, 

1 8  A  lender  of  a  chattel  Is  responsible  for  defects  in  It  with  reference  to  the 
use  for  which  the  loan  is  accepted,  of  which  he  is  aware,  and  owing  directly 
to  which  the  borrower  is  injured.  Blaliemorp  v.  Bristol  &  B.  Ry.  Co.,  8  El. 
&  Bl.  1035.    See  MacCarthy  v.  Young,  6  Hurl.  &  N.  329.    See,  also,  ante,  p.   10. 

2  0  MacCarthy  v.  Young,  6  Hurl.  &  N.  329;  Blaliemore  v.  Bristol  &  B.  Ry.  Co., 
8  El.  &  Bl.  1035,  1050. 

21  CampbeU  v.  Stakes,  2  Wend.  (N.  Y.)  137;  Cary  v.  HotalUng,  1  Hill  (N. 
Y.)  311. 

»2  Bailm.  §  243. 


1^    21]  RIGHTS    AND    LIABILITIES    OP   PARTIES.  89 

if  the  borrower  had  frankly  stated  that  fact,  then  the  loss  must  be 
borne  by  the  lender. 

Right  to  Use. 

The  understanding  on  which  the  loan  is  made  limits  the  right  to 
use  the  property.  Articles  loaned  for  one  purpose  cannot  be  used 
for  another.  The  lender  has  the  right  to  prescribe  the  conditions 
upon  which  he  is  willing  to  lend  his  property.  Where  thp  londpr 
has  fixed  llie  time,  j^lace,  or  mode  of  use,  any  departure  from  such 
liimitations  is  a  tort,  and  renders  (lie  borro\\er  strictly  liable.-^  For 
example,  to  take  a  case  sui)posed  b\'  Lord  Holt,''  if  a  man  lends  an- 
other his  horse  to  go  westward  or  for  a  month,  and  the  bailee  goes 
northward  or  keeps  the  horse  above  a  month,  the  bailee  will  be 
chargeable  if  any  accident  happens  on  the  northern  journey  or  after 
the  expiration  of  the  month,  because  he  has  made  use  of  the  horse 
contrary  to  the  trust  it  was  lent  to  him  under.^^ 

A  gratuitous  loan  is  to  be  regarded  as  strictly  personal,  unless, 
from  other  circumstances,  a  different  intention  can  fairly  be  pre- 
sumed.*® A  borrower  has  ordinarily  no  right  to,  in  turn,  lend  the 
property  to  another.''^     The  intention  of  the  parties,  of  course,  con- 

2  3  Collins  V.  Bennett,  46  N.  Y.  490;  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5; 
Buchanan  v.  Smith,  10  Hun,  474;  Wheelock  v.  Wheelwright,  5  Mass.  104; 
Isaack  v.  Clark,  2  Bulst.  300;  Cullen  v.  Lord,  39  Iowa,  302;  Kennedy  v. 
Ashcraft,  4  Bush  (Ky.)  530;  Stewart  v.  Davis,  31  Ark.  318;  Martin  v.  Cuth- 
bertson,  64  N.  C.  328;  Booth  v.  Terrell,  16  Ga.  25;  Lay's  Ex'r  v.  Lawson's 
Adm'r,  23  Ala.  377;  Woodman  v.  Hubbard*  25  N.  H.  67;  Grant  v.  Ludlow's 
Adm'r,  8  Ohio  St.  1.  If,  after  a  conversion,  the  owner  receives  the  prop- 
erty back,  he  can  still  recover  for  any  damage  he  has  sustained;  that  is. 
the  value  of  the  property  when  received  goes  in  mitigation  of  damages.  Mur- 
ray V.  Burling,  10  Johns.  (N.  Y.)  172;  Bowman  v.  Teall,  23  Wend.  ^N.  Y.) 
306;  Gibbs  v.  Chase,  10  Mass.  125;  Wheelock  v.  Wheelwright,  5  Mass.  104; 
Todd  V.  Figley,  7  Watts  (Pa.)  542;  Bayliss  v.  Fisher,  7  Bing.  153;  Syeds 
V.  Hay,  4  Term  R.  260,  264.    See,  also,  post,  p.  186. 

2  4  In  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  915,  916.  And  see  De  Tollenere 
V.  Fuller,  1  Mill,  Const.  S.  C.  (N.  S.)  121;  Vaughan  v,  Menlove,  3  Bing.  N.  C.  468, 
475. 

25  Stewart  v.  Davis,  31  Ark.  518;   Hart  v.  Skinner,  16  Vt.  138. 

2  6  Bringloe  v.  Morrice,  1  Mod.  210,  3  Salk.  271;  Scranton  v.  Baxter,  4  Sandf. 
(N.  Y.)  5. 

»T  Wilcox  V.  Hogan,  5  Ind.  540. 


90  BAILMKNTS    FOR    THE    BAILEE'S    SOLE    BENEFIT.  [Cll.   3 

trols.'^^  Thus,  in  Bringloe  v.  Morrice  *"  the  plaintiff  had  loaned  his 
horse  to  defendant  to  ride  for  pleasure,  and  it  was  held  that  the  de- 
fendant had  no  right  to  permit  his  servant  to  ride  the  horse.  But 
in  Camojs  v.  Scurr  ^°  it  was  held  that  one  in  possesion  of  a  horse 
for  the  purpose  of  trying  it  with  a  view  to  a  purchase  was  entitled 
to  put  a  competent  person  on  the  horse  for  the  purpose  of  trying  it, 
and  was  not  limited  to  merely  trying  it  himself.  So,  also,  if  a  horse 
should  be  loaned  for  the  bailee's  use  for  a  fixed  time,  it  is  a  fair  pre- 
sumption that  the  parties  intended  that  the  bailee  might  use  the 
horse  through  his  servants.'*  Every  case  must  rest  on  its  own 
facts.'* 

Right  of  Action  against  TJiird  Persons. 

There  is  the  same  confusion  of  ideas  with  reference  to  the  nature 
of  the  borrower's  interest  in  the  property  loaned  that  there  is  in  the 
ease  of  deposits  and  mandates.  Some  authors  claim  that  the  bor- 
rower has  a  special  property  in  the  subject  of  the  loan,^^  and  others 
that  he  has  merely  a  possessory  interest.'*  Perhaps  the  inquiry  is 
more  curious  than  practical,  as  all  agree  that  the  borrower  may 
maintain  an  action  for  the  wrongful  disturbance  of  his  possession.'^ 

2  8  Scranton  v.  Baxter,  4  Sandf.  (N.  ¥.)  5;  Wilcox  v.  Hogan,  5  Ind.  546; 
Bringloe  v.  Morrice,  1  Mod.  210. 

2  9  1  Mod.  210,  3  Salk.  271. 
80  9  Car.  &  P.  383. 

31  Camoys  v.  Scurr,  9  Car.  &  P.  383. 

82  Ray  V.  Tubbs,  50  Vt.  688.  One  who  borrows  a  vehicle  having  a  seat 
for  two  may  take  another  person  with  him,  unless  otherwise  stipulated. 
Harrington  v.  Synder,  3  Barb.  (N.  Y.)  380.  The  bailee  is  not  liable  for  de- 
preciation due  to  the  contemplated  use.  Seller  v.  Schultz,  44  Mich.  529,  7 
N.  W.  225;  Parker  v.  Gaines  (Ark.)  11  S.  W.  693. 

3  3  See  ante,  p.  58. 

34  Taylor  v.  Lendey,  9  East,  49;  Burton  v.  Hughes,  2  Bing.  173.  See  Faulk- 
ner V.  Brown,  13  Wend.  (N.  Y.)  63. 

86  Chamberlain  v.  West,  37  Minn.  54,  33  N.  W.  114;  Paddock  v.  Wing,  16 
How.  Prac.  547;  Hurd  v.  West,  7  Cow.  (N.  Y.)  753;  Hendricks  v.  Decker,  35 
Barb.  (N.  Y.)  298;  Barker  v.  Miller,  6  Johns.  (N.  Y.)  195;  Duncan  v.  Spear, 
11  Wend.  (N.  Y.)  54;  Badlam  v.  Tucker,  1  Pick.  (Mass.)  389;  Nicolls  v.  Bas- 
tard, 2  Cromp.,  M.  &  R.  859;  Burton  v.  Hughes,  2  Bing.  173;  Sutton  v.  Buck, 
2  Taunt.  302;  Booth  v.  Wilson,  1  Bam.  &  Aid.  59.  As  to  trover  by  the  bailee, 
see  Waterman  v.  Robinson,  5  Mass.  303;  Burton  v.  Hughes,  supra;  Armory 
V,  Delamirie,  1  Strange,  505;    Ogle  v.  Atkinson,  5  Taunt.  759.     The  bailee 


§    -1]  RIGHTS    AND    LIABILITIES    OF    PARTIK8.  91 

It  would  seem,  however,  that  if  the  loan  were  for  a  definite  period, 
and  the  owner  had  no  right  to  recall  the  loan  before  the  expiration 
of  that  period, — a  point  not  free  from  doubt, — the  borrower  would 
have  a  special  property  in  the  loan.^"  But  if  the  loan  is  for  an  in- 
definite period,  and  the  owner  has  power  to  resume  possession  at 
any  time,  then,  perhaps,  the  bailee  cannot  be  said  to  have  a  special 
property  in  the  loan,  but  merely  a  possessory  interest.  The  lender, 
however,  may  also  maintain  an  action.^ ^  A  recovery  by  either  the 
lender  or  the  borrower  is  a  bar  to  an  action  by  the  other.** 

may  sue  and  recover,  although  he  Is  not  liable  to  the  bailor.  Where  a  bailee 
received  a  horse  from  the  owner  with  the  understanding  that  he  might  use 
him,  and,  if  satisfied  with  him,  purchase  him,  held,  that  such  bailee  had  a 
sufficient  right  of  property  in  the  horse  to  maintain  an  action  against  a  party 
to  whom  he  had  let  the  horse,  for  injuries  resulting  from  ovenlriving.  Har- 
rison V,  Marshall,  4  E.  D.  Smith  (N,  Y.)  271.  And  see  White  v.  Philbrick,  5 
Greenl.  (Me.)  147;  Campbell  v.  Phelp's,  1  Pick.  (Mass.)  62;  Adams  v.  Brough- 
ton,  2  Strange,  1078;  Lamine  v.  Dorrell,  2  Ld.  Raym.  1216;  Broome  v. 
Wooter,  Yel.  67j.  Cf.  Little  v.  Fossett,  34  Me.  545,  with  Lockhart  t.  Rail- 
road, 73  Ga.  472;  Raggett  v.  McCormack  (Miss.)  19  South.  89. 

8  6  See  post,  p.  96. 

37  Orser  v.  Storms,  9  Cow.  (N.  Y.)  687;  Thorp  v.  Burling,  11  Johns.  (N.  Y.) 
285;  Hurd  v.  West,  7  Cow.  (N.  Y.)  753;  Putnam  v.  Wyley,  8  Johns.  (N.  Y.) 
432;  Hoyt  v.  Gelston,  13  Johns.  (N.  Y.)  141;  Booth  v.  Terrell,  16  Ga.  21,  25; 
Smith  V.  Milles,  1  Term  R.  475,  480;  Lotan  v.  Cross,  2  Camp.  464;  Nicolls  v. 
Bastard,  2  Cromp.,  M.  &  R.  659.  And  see  Roberts  v.  Wyatt,  2  Taunt.  268. 
275.  In  Orser  v.  Storms,  9  Cow.  (N.  Y.)  (>87,  it  was  held  that  one  who 
had  a  right  to  personal  property  loaned  for  an  indefinite  time  might  main- 
tain trespass  for  the  taking  of  it.  llie  court  said:  "The  first  question 
to  be  considered  is  whether  the  plaintiff  had  such  a  property  in  the  cattle 
as  to  be  able  to  maintain  trespass.  For  this  purpose  he  must  have  had 
the  actual  or  constructive  possession  at  the  time;  and  the  latter  is  when 
he  has  such  a  right  as  to  be  entitled  to  reduce  the  goods  to  actual  posses- 
sion at  any  time.  *  *  *  In  my  opinion,  the  plaintiff  had  the  right  to  bring 
this  action."  See,  also,  Pulliam  v.  Burlingame,  81  Mo.  111.  As  holding  that 
a  lender  for  a  fixed  time  has  not  such  constructive  possession,  see  Putnam 
V.  Wyley,  8  Johns.  (N.  Y.)  432;  Hoyt  v.  Gelston,  13  Johns.  (N.  Y.)  142;  Aiken 
V.  Buck,  1  Wend.  (N.  Y.)  46(>.  The  bailor  may  maintain  trespass  against 
one  who  wrongfully  takes  the  goods  from  the  bailee  even  by  legal  process. 
Root  V.  Chandler,  10  Wend.  110. 

3  8  Faulkner  v.  Brown,  13  Wend.  (N.  Y.)  63;  Hall  v.  Tuttle,  2  Wend.  (N.  Y.) 
475,  479;  Flewellin  v.  Rave,  1  Bulst.  68. 


92  BAILMENTS    FOR    THE    BAILKE's    S(»LE    BEiNEFlT.  [Ch.   3 

Borrower  Liable  for  Slight  Negligence. 

It  is  the  borrower's  duty  to  exercise  great  or  more  than  ordinary 
diligence  in  the  care  of  the  property  loaned.^''  He  is  not  liable  for 
loss  or  damage  due  to  inevitable  accident,  vis  major,  or  the  ordinary 

89  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5;  Phillips  v.  Coudon,  14  111.  84; 
Bennett  v.  O'Brien,  87  111.  250;  Hagebush  v.  Ragland,  78  111.  40;  Howard  v. 
Babcock,  21  111,  259;  Green  v.  Hollingsworth,  5  Dana  (Ky.)  173;  Fortune  v. 
Harris,  6  Jones  (N.  C.)  532;  Ross  v.  Clark,  27  Mo.  549;  Wood  v.  McClure, 
7  Ind.  155;  Carpenter  v.  Branch,  13  Vt.  IGl;  Vaughan  v.  Menlove,  3  Bing. 
N.  C.  468,  475.  If  bailment  be  for  exclusive  benefit  of  bailee,  greatest  care 
and  attention  is  necessary  to  discharge  him  in  case  of  loss;  hence  bailee  of 
negress  was  held  liable  when  he  sent  her  where  smallpox  was  known  to  be 
raging,  and  she  sickened  and  died  of  that  disease.  De  Tollenere  v.  Fuller, 
1  Mill.  Ctonst.  (S.  0.)  117.  In  Watkins  v.  Roberts,  28  Ind.  167,  which  was 
a  suit  for  the  value  of  a  borrowed  horse,  the  answer  was  that  the  horse  was 
borrowed  to  go  to  a  certain  lilace  and  return,  and  that  while  on  his  way,  and 
without  fault  or  negligence  on  his  part,  the  borrower  was  met  by  soldiers, 
who  took  the  horse  by  force.  The  answer  was  held  good.  In  De  Fonclear  v. 
Shottenkirk,  3  Johns.  (N.  Y.)  170,  where  it  was  shown  that  a  slave  was  de- 
livered to  a  party  on  trial,  and  that,  upon  being  allowed  to  go  on  an  errand, 
he  ran  away,  it  was  held  that  the  bailee  was  not  responsible.  Agricultural 
society,  inviting  persons  to  lend  articles  for  exhibition  at  fair,  and  promising 
to  take  care  of  them,  is  responsible  if  they  are  stolen  by  its  negligence.  Vigo 
Agricultural  Soc.  v.  Brumfiel,  102  Ind.  146,  1  N.  E.  382.  Where  a  horse  loaned 
by  plaintiff  to  defendant  was  carried  to  defendant's  house,  and  placed  in  the 
common  horse  lot,  so  used  for  many  years,  though  it  was  somewhat  slanting, 
and  the  horse,  being  nearly  blind,  and  the  weather  being  wet,  slipped  and 
fell  upon  a  stump,  breaking  its  thigh,  held,  that  these  facts  did  not  import 
such  negligence  as  to  render  defendant  liable  for  the  loss  of  the  property. 
Fortune  v.  Harris,  6  Jones  (N.  C.)  532.  Owner  of  a  flag  lent  it  to  his  em- 
ployer, helped  to  hoist  it  on  employer's  building,  and  left  it  flying  when  he 
went  away.  It  was  afterwards  injured  by  a  hailstorm.  Held,  in  absence  of 
proof  of  negligence,  that  borrower  was  not  liable.  Beller  v.  Schultz,  44  Mich. 
529,  7  N.  W.  225.  One  who,  at  owner's  request,  takes  a  drive  in  a  sulky, 
is  liable  for  injury  to  it  occasioned  by  his  want  of  common  prudence.  Car- 
penter V.  Branch,  13  Vt.  161.  In  a  suit  brought  by  the  lender  against  the 
borrower  of  a  horse,  which  died  in  the  possession  of  the  latter,  after  the 
plaintiff  proved  the  character  of  the  bailment  and  the  death  of  the  horse  in 
the  bailee's  hands,  it  devolved  on  the  latter  to  show  he  had  exercised  the  de- 
gree of  care  required  by  the  nature  of  the  bailment.  Bennett  v.  O'Brien,  37 
111.  250.  And  see  Lx)gan  v.  Mathews,  6  Pa.  St.  417;  Bush  v.  Miller,  13  Barb. 
(N.  Y.)  481;  Beardslee  v.  Richardson,  11  Wend.  (N.  Y.)  25;  Piatt  v.  Hibbard, 
7  Cow.  (N.  Y.)  497,  note;  Doorman  v.  Jenkins,  2  Adol.  &  E.  256,  259;  Marsh 


§    21]  RIGHTS    AND    LIABILITIKS    OF    PAKTIES.  93 

wear  and  tear,*"  unless  he  negligently  or  willfully  exposed  it  to  the 
danger  of  such  loss,  or  negligently  failed  to  avert  it*^  But  very 
slight  negligence  is  sufficient  to  render  him  liable.  Lord  Holt  *" 
said  that  the  borrower  is  bound  to  "the  strictest  care  and  diligence; 
*  *  *  that,  if  the  bailee  be  guilty  of  the  least  neglect,  he  will  be 
answerable."  This  was  the  rule  of  the  civil  law,  where  "exactissima 
diligentia"  marked  the  degree  of  diligence  exacted.*^  The  rule  al 
common  law  requires  such  diligence  as  one  more  than  ordinarily 
careful  would  bestow  upon  his  own  property  under  like  circum- 
stances. 

A  borrower  must,  of  course,  exercise  at  all  times  the  most  perfect 
good  faith.  He  must  keep  within  the  terms  of  the  loan.  A  differ- 
ent use  from  that  authorized  by  the  lender  is  a  misuse,  and  renders 
the  borrower  strictly  liable.**  But  where  he  is  using  the  property 
in  the  very  manner  contemplated,  and  damage  results  from  causes 
for  which  he  is  in  no  way  responsible,  he  is  not  liable,  for  he  is  guilty 
of  no  wrong.*'  Borrowers  are  not  insurers,  unless  they  make  them- 
selves so  either  by  their  contract  or  by  their  positive  wrong.*®     The 

V,  Home,  5  Bam.  &  C.  322;  Harris  v.  Packwood,  3  Taunt.  264.  If  an  Injury 
happen  to  property  In  the  hands  of  the  borrower,  the  interference  of  the 
lender  to  remedy  the  evil  will  not  release  the  bailee  from  responsibility  for 
negligence.  Todd  v.  Figley,  7  Watts.  (Pa.)  542;  Eastman  v.  Sauboru,  3  Allen, 
594.  And  see  Bayliss  v.  Fisher,  7  Bing.  153.  See,  generally,  Bennett  v. 
O'Brien,  37  111.  250;  Phillips  v.  Condon,  14  III.  84;  Moore  v.  Westervelt.  27 
N.  Y.  234,  243;  Esmay  v.  Fanning,  9  Barb.  176. 

*o  Hyland  v.  Paul,  33  Barb.  (N.  Y.)  245;  Watldns  v.  Roberts,  28  Ind.  167; 
Wood  V.  McClure,  7  Ind.  155;  Fortune  v.  Harris,  6  Jones  (N.  C.)  532;  Abra- 
ham V.  Nunn,  42  Ala.  51;   Yale  v.  Oliver,  21  La.  Ann.  454. 

41  Read  v.  Spaulding,  30  N.  Y.  630;  Bowman  v.  Teall,  23  Wend.  (N.  Y.) 
310;  Wing  v.  New  York  .&.  E.  R,  Co.,  1  Hilt.  (N.  Y.)  235;  Davis  v.  Garrett, 
6  Bing.  716. 

*2  In  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  915. 

48  Story,  Bailm.  §  238. 

44  Buchanan  v.  Smith,  10  Hun,  474;  Lane  v.  Cameron,  38  Wis.  603;  Culleu 
V.  Lord,  39  Iowa,  302;  McMalion  v.  Sloan,  12  Pa.  St.  229;  Kennedy  v.  Ash- 
craft,  4  Bush  (Ky.)  530;  Martin  v.  Cuthbertson,  64  N.  C.  328;  Stewart  v. 
Davis,  31  Ark.  518;    Crump  v.  MitcheU,  34  Miss.  449.    See  ante,  note  23. 

45  Wood  V.  McClure,  7  Ind.  155;  Watkins  v.  Roberts,  28  Ind.  167;  Fortune 
V.  Harris,  6  Jones  (N.  C.)  532, 

40  Hard  v.  Neaving,  44  Barb.  (N.  Y.)  472;    Rockwell  v.  Nearing,  35  N.  Y. 


94  BAILMENTS    FOR    THE    BAILEE's    SOLE    BENEFIT.  [C'll.    .) 

parties  may  by  contract  vary  their  liabilities  almost  at  will."^  Viv. 
Schouler  *"  suggests,  however,  that,  in  the  case  of  gratuitous  loans, 
courtB  should  be  reluctant  to  construe  an  agreement  so  as  to  reduce 
the  borrower's  measure  of  responsibility,  but  should  rather  lean 
towards  a  construction  that  the  borrower  had  specially  assumed  the 
liability  of  an  insurer.  A  contract  to  "return  or  account  for" 
certain  bonds  borrowed  for  the  purpose  of  pledging  has  been  held  to 
be  an  absolute  engagement  to  be  responsible  for  the  bonds  under  all 
circumstances,  and  the  borrower  was  accordingly  held  liable  where 
the  bonds  were  stolen  without  his  fault.*^  This  case  is  very  doubt- 
ful, and  ceilainly  pushes  the  principle  to  an  extreme. 

A  borrower's  character,  habits,  and  skill,  so  far  as  known  to  the 
lender,  may  be  considered  in  determining  what  care  or  skill  was 
expected  by  the  parties.  The  lender  cannot  require  greater  skill  on 
the  part  of  the  borrower  than  he  had  a  right  to  presume  the  borrower- 
was  capable  of  bestowing.^"  If  a  spirited  horse  be  lent  to  a  raw 
youth,  and  the  owner  knew  him  to  be  such,  the  circumspection  of  an 
experienced  rider  cannot  be  required;  and  what  would  be  negli- 
gence in  the  one  would  not  be  so  in  the  other. "^^ 

There  is  a  question  of  rather  theoretical  than  practical  interest, 
which  has  been  more  or  less  discussed  by  all  writers  upon  bailments, 
viz. :  If  a  man's  house  is  on  fire,  so  that  he  has  not  time  to  save  both 
his  own  and  the  borrowed  chattels,  is  he  bound  to  give  the  borrowed 
cliattels  preference?  The  question  is  answered  in  the  aflQrmative  by 
the  civil  law  and  the  French  and  Louisiana  Codes.*  Pothier,t  while 
admitting  the  question  to  be  of  some  difficultyj  concludes  that  the 
borrower  must  give  the  borrowed  chattels  the  preference,  on  the 

302;  Btller  v.  Scbultz,  44  Mich.  529,  7  N.  W.  225;  Whitehead  v,  Vanderbilt, 
10  Daly  (N.  Y.)  214;   Camoys  v.  Scurr.  9  Car.  &  P.  383. 

*T  Archer  v.  Walker,  38  Ind.  472.  But  see  Watkins  v.  Roberts,  28  Ind,  167. 
Sec.  nI«o,  ante,  p.  10. 

«•  Bail  11).  Sri. 

«•  Archer  v.  Walker,  38  Ind.  472. 

•0  .Mooers  v.  Lurry.  15  Gray.  451;  Knowles  v.  Atlantic  &  St.  L.  R.  Co.,  38 
Me,  Ki;   Eiixtnian  v.  Patterson,  38  Vt.  14(5. 

•»  Beale  v.  South  D^von  Uy.  Co..  12  Wkly.  Rep.  1115;  Wilson  v.  Brett,  11 
Mce».  &  W.  113;  Kortune  v.  Harris,  6  Jones  (N.  C.)  532;  Story,  Bailm.  §  245; 
2  Kent,  Cotnm.  575,  and  note. 

•  Code  Naiwlcon.  art.  1882;    Rev.  Civ.  Code  La.  art  2871, 

t  Prc't  &  Usage,  note  50. 


§   22]  TERMINATION    OF    LOAN.  95 

ground  iliat  he  .engages  for  the  j^'oatest  diligence,  and  that  nothing 
but  vis  major  or  inevitable  accident  will  excuse  him.  Kent  "*  sanc- 
tions Pothier's  view,  except  where  the  owner's  goods  are  very  much 
more  valuable  than  the  borrowed  chattels,  in  which  case  the  more 
valuable  goods  should  be  first  saved.  Judge  Story "'  questions  the 
correctness  of  these  \iews.  He  concludes,  .and  the  weight  of  reason 
seems  to  be  with  him,  that  the  test  of  liability  in  cases  of  this  sort  is 
whether  or  not  there  is  any  negligence  in  not  saving  the  borrowed 
goods.  Where  both  his  own  and  the  borrowed  goods  could  not  be 
saved,  and  he  saved  his  own,  there  cannot  be  any  negligence,  unless 
there  was  a  superior  duty  to  save  the  borrowed  goods  and  sacrifice 
his  own.  Mr.  Story  seems  to  deny  the  existence  of  such  a  duty  in 
the  common  calamity.  Mr.  Schouler  **  aptly  points  out  that  the 
idea  of  a  superior  duty  grows  out  of  the  false  test  of  measuring  dili- 
gence by  the  bailee's  eventual  conduct  towards  his  own,  instead  of 
the  conduct  of  the  average  man  of  his  class.'*'*  The  fact  that  a  bor- 
rower saves  his  own,  and  not  the  borrowed,  goods,  leaves  him  open  to 
suspicion,  but  he  may  well  be  able  to  show  that  his  conduct  was  con- 
sistent with  due  diligence.  The  presence  or  absence  of  the  superior 
duty  to  save  the  borrowed  goods  is  a  question  of  fact  dependent  on 
all  the  circumstances,  such  as  the  relative  value,  bulk,  situation,  and 
general  nature  of  the  goods.  As  Mr.  Schouler  has  well  put  it,  the 
bottom  problem  in  the  case  is  whether,  in  his  anxiety  to  save  his  own 
goods,  the  borrower  slackened  in  the  duty  he  owed  of  acting  with 
honor  and  great  diligence  in  endeavoring  to  preserve  the  borrowed 
property  safely. 

TERMINATION  OF  LOAN. 

22.  A  loan  may  be  terminated  in  various  ways;  inter  alia: 

(a)  By  accomplishment  of  its  purpose  (p.  96). 

(b)  By  operation  of  law  (p.  96). 

(c)  By  mutual  consent  (p.  96). 

02  2  Comm,  (13th  Ed.)  575. 
0  8  Bailm.  §§  245-249b. 
04  Bailm.  82. 

60  See  Delaware  Bank  v.  Smith,  1  Edm.  Sel.  Oaa.  (N.  Y.)  851;   Anderson  ▼. 
Foresman,  Wright  (Ohio)  598;   Bland  v.  Womack,  2  Murph.  (N.  C.)  373. 


96  BAILMENTS    FOR   THE    BAILEE'S    SOLE    BENEFIT.  [Ch.   3 

(d)  By  the  borrower's  -wrong  (p.  97). 

(e)  By  either  party  at  his  option,  except — 
EXCEPTION— Where   the   loan  is  for  a  definite  time,  it 

is  doubtful  -whether  the  lender  can  terminate  it  be- 
fore that  time  has  expired  (p.  97). 

A  loan  may  be  terminated  in  many  ways.^^  Where  it  was  made 
for  a  limited  time,  or  for  a  special  purpose,  mere  lapse  of  time  or 
accomplishment  of  the  purpose  will  termiuate  it.*  When  the  bor- 
i:gwer  becomes  full  owner,  his  interest  as  bailee  merges  in  the  higher 
titlCj^andthe  loan  is  terminatet^  by  opeiatiou  of  l;u\'.  The  parties, 
by  mutual  consent,  may,  of  course,  abandon  the  bailment  So,  also, 
the  death  of  the  borrower,  if  not  of  itself  terminating  the  bailment, 
at  least  gives  the  lender  a  right  to  do  so.^^  Whether  the  death  of 
the  lender  terminates  the  bailment  is  not  so  clear.  It  would  de- 
pend on  the  nature  of  the  borrower's  interest  in  the  property.  If 
it  is  strictly  precarious,  the  lender's  death  would,  at  least,  give  his 
representatives  a  right  to  immediately  terminate  the  loan.  If  the 
bailee  has  a  special  property  in  the  borrowed  chattel,  the  death  of  the 
lender  would  not  affect  the  loan.  Where  the  loan  was  for  an  in- 
definite time,  the  lender  may  recall  it  at  any  time.^®  A  loan  of  this 
kind  was  called  a  "precarium"  in  the  civil  law.  It  is  often  said  that, 
even  when  the  loan  is  for  a  fixed  period,  the  lender  may  nevertheless 

59  A  sale  by  the  bailor  of  his  interest  terminates  the  loan  (when  it  is  for 
an  indefinite  time).  Parker  v.  Tiffany,  52  111.  286;  Hodges  v.  Hurd,  47  111. 
363. 

*  On  the  expiration  of  the  stipulated  time,  the  lender  may,  without  demand, 
maintain  an  action  to  recover  the  property  loaned.  Ulapp  v.  Nelson,  12  Tex. 
370. 

5  7  Smiley  v.  Allen,  13  Allen,  465. 

5  8  Putnam  v.  Wiley,  8  Johns.  (N.  Y.)  432;  Orser  v.  Storms,  9  Cow.  (N.  Y.; 
687;  Neff  v.  Thompson,  8  Barb.  (N.  Y.)  213;  Green  v.  Hollingsworth,  5  Dana 
(Ky.)  173;  Pulliam  v,  Burlingame,  81  Mo.  Ill,  116;  Clapp  v.  Nelson,  12 
Tex.  370;  Lyle  v.  Perry,  1  Dyer,  486;  Smith  v.  Milles,  1  Term  R.  480;  Tay- 
lor V.  Lendey,  9  East,  49;  Clark's  Case,  2  Leon.  30.  But  the  rule  is  other- 
wise in  Louisiana.  Code,  art  2877.  Delay  of  three  weeks  in  returning 
watch  indefinitely  loaned  for  use  is  not  unreasonable.  Green  v.  Hollings- 
worth, 5  Dana  (Ky.)  173.  Where  loan  is  for  indefinite  time,  lender  must  make 
demand  before  bringing  suit.    Payne  v.  Gardiner,  29  N.  Y.  146. 


§    22]  TERMINATION    OF    LOAN.  97 

recall  it  at  pleasure.  Judge  Story  "  says  that  every  loan  Is  under- 
stood, as  to  its  continuance,  to  rest  upon  the  good  faith  and  good 
pleasure  of  the  lender,  and  to  be  strictly  precarious.  But  both  Mr. 
Story'"  and  Mr.  Schouler  "^  think  that  the  bailee  ought  to  be  able 
to  recover  damages  if  the  premature  termination  results  in  injury  to 
him.  If  th6  bailor  had  a  right  to  terminate  the  bailment  at  any 
time,  it  is  hard  to  see  on  what  principle  damages  could  be  awarded. 
The  more  reasonable  view  is  that,  when  a  loan  is  for  a  fixed  time, 
the  lender  cannot  terminate  the  loan  before  that  time.^*  This  was 
the  rule  of  the  civil  law."*  The  detriment  to  the  borrower  in  failing 
to  make  other  arrangements  for  his  needs  is  a  sufficient  consideration 
to  bind  the  lender  to  his  promise.  The  borrower's  distinct  wrong  or 
violation  of  the  contract  gives  the  lender  a  right  to  recall  the  loan.^* 
Any  attempt  to  transfer  the  property  or  to  deal  with  it  as  his  own 
would  be  such  a  wrong.  A  lender  should  ordinarily  make  a  demand 
when  he  wishes  to  terminate  the  bailment,  but,  when  a  demand  would, 
be  futile,  none  need  be  made.°° 

Until  a  demand  and  refusal  to  return  property  loaned  for  an  indefi- 
nite time,  the  statute  of  limitations  does  not  begin  to  run  against  the- 
bailor.®' 

eo  Ballm,  §  277. 
60  Bailm.  §§  258,  271. 
ei  Bailm.  87. 

«2  See  Root  v.  Chandler,  10  Wend.  (N.  Y.)  110;  Hoyt  v.  Gelston,  13  Johns. 
(N.  Y.)  142;   Bringloe  v.  Morrice,  1  Mod.  210. 

63  Story,  Bailm.  §  271. 

64  Hurd  V.  West,  7  Cow.  (N.  Y.)  752;  Esmay  v.  Fanning,  9  Barb.  (N.  T.) 
176;  McMahon  v.  Sloan,  12  Pa.  St.  229;  Ci-ump  v.  Mitchell,  34  Miss.  449; 
Cooper  V.  Willomatt,  1  C.  B.  672;  Wilkinson  v.  Verity,  L.  K.  6  C.  P.  206. 

«B  Ross  v.  Clark,  27  Mo.  549.  See  Clapp  v.  Nelson,  12  Tex.  o70.  In  a  suit 
to  recover  the  value  of  a  chattel  loaned,  the  lender  must  show  a  demand, 
or  that  the  property  has  been  lost  or  destroyed  by  the  defendant's  negligence. 
or  that  he  has  converted  it  to  his  own  use.  Ross  v.  Clark,  27  Mo.  549. 
Where  property  is  loaned  for  a  definite  period,  or  for  a  day  or  two,  and  Is 
not  returned  within  the  longer  time,  an  action  may  be  sustained  to  recover 
It  or  its  value,  without  a  demand.     Clapp  v.  Nelson,  12  Tex.  370. 

66  Payne  v.  Gardiner,  29  N.  Y.  146;  Kelsey  v.  Griswold,  6  Barb.  (N.  T.)  436; 
Huntington  v.  Douglass,  1  Rob.  (N.  Y.)  204;  Bruce  v.  Tilson,  25  N.  Y.  194; 
Roberts  v.  Bardell,  61  Barb.  (N.  Y.)  37;  Roberts  v.  Sykes,  30  Barb.  (N.  Y.)  173. 

LAW  BAILM.— 7 


98  BAILMENTS    FOR    THE    BAILEE'S    SOLE    BENEFIT.  [Ch.   3 


SAME— REDELIVERY. 

23.  At  the  termination  of  the  loan,  the  property  must  be 
restored  by  the  borrower,  together  with  its  incre- 
ments. 

The  thing  borrowed  is  not  only  to  be  returned,  but  everything 
that  is  accessorial  to  it.  Thus,  the  young  of  an  animal,  born 
during  the  time  of  the  loan,  is  to  be  restored;  and  the  income  of 
stock,  which  has  been  lent  to  the  borrower  to  enable  him  to  pledge  it, 
as  a  temporary  security,  also  belongs  to  the  lender.^^ 

In  regard  to  the  place  where  the  thing  is  to  be  returned,  only  gen- 
eral principles  can  be  laid  down.  If  no  particular  place  is  pointed 
out  by  the  contract,  it  is  to  be  returned  to  the  lender  at  his  usual 
dwelling  house,  unless  the  thing  properly  belongs  elsewhere.®*  If 
the  lender  has  in  the  meantime  removed  his  domicile  to  another  place, 
the  borrower  is  not  bound  to  follow  it,  and  return  the  thing  at  the 

6  7  Orser  y.  Storms,  9  Cow.  (N.  Y.)  687;  Hasbrouck  v.  Vandervoort,  4  Sandf. 
(N.  Y.)  74;  Booth  v.  Terrell,  16  Ga.  20,  25;  Allen  v.  Delano,  55  Me.  113. 
When  no  time  has  been  fixed  for  a  termination  of  the  loan,  the  return  must 
be  made  in  a  reasonable  time.  Wilcox  v.  Hogan,  5  Ind.  546;  Green  v.  Hol- 
lings worth,  5  Dana  (Ky.)  173;  Ross  v.  Clark,  27  Mo.  549;  Lay's  Ex'r  v.  Law- 
son's  Adm'r,  23  Ala.  377.  The  bailee  is  liable  for  breach  of  contract  if  he 
falls  to  return  at  the  time  specified.  Fox  v.  Pruden,  3  Daly  (N.  Y.)  187; 
Clapp  V.  Nelson,  12  Tex.  870.  The  borrower  is  bound  to  return  the  article 
loaned  at  the  time  stipulated,  or,  if  no  time  is  fixed,  in  a  reasonable  time; 
and  whether  it  had  become  his  duty  .to  return  it  or  not,  where  a  loss  occur- 
red, is  a  question  of  fact,  to  be  found  by  a  jury.  Green  v.  Hollingsworth,  5 
Dana  (Ky.)  173.  Where  there  has  been  a  temporary  exchange  of  articles  of 
property,  there  is  no  principle  that  requires  that  the  one  shall  be  returned 
to  the  former  owner  before  the  other  can  be  recovered.  Hoell  v.  Paul,  4 
Jones  (N.  C.)  75.  A  borrower  of  a  chattel  will  not  be  permitted  to  set  up 
title  in  himself  until  he  has  restored  the  chattel  to  the  lender.  Simpson  v. 
Wrenn,  50  111.  222.     And  see  Nudd  v.  Montanye,  38  Wis.  511. 

8  8  The  plaintiff  loaned  his  carriage,  in  June,  to  the  defendant,  it  being  then 
stored  at  a  stable  In  the  city  In  which  both  parties  resided;  and,  in  December 
following,  the  defendant  returned  it  to  the  same  stable,  after  the  stable 
keeper  had  ceased  to  be  plaintiff's  agent.  Held  a  conversion.  It  should  have 
been  returned  to  plaintiff  at  his  residence.  Esmay  v.  Fanning,  9  Barb.  (N. 
Y.)  176,  5  How.  Prac  228.  And  see  Rutgers  v.  Lucet,  2  Johns  Gas.  (N. 
y.)  92. 


§   23]  TERMINATION    OF   LOAN — REDELIVERY.  99 

new  residence;  but  he  is  bound  only  to  return  it  at  the  former  resi- 
dence, unless,  indeed,  there  is  but  a  trifling  difference  in  the  distance 
between  them."  The  common  law  seems  not  to  have  laid  down  any 
special  rules  on  the  subject,  but  has  left  the  decision  to  be  made  upon 
the  particular  circumstances  of  each  case,  as  it  shall  arise,  according 
to  the  presumed  intention  of  the  parties.'''' 

It  is  wholly  immaterial  whether  the  thing  is  returned  to  the  lender 
or  to  his  authorized  agent,  or  by  the  borrower  or  by  his  agent.^^  If 
the  thing  has  been  properly  delivered  to  the  agent  of  the  lender,  the 
borrower  will  be  discharged,  although  it  never  comes  to  the  posses- 
sion of  the  lender,  by  the  fraud  or  neglect  of  the  agent.^* 

The  borrower  cannot  retain  the  thing  borrowed  for  any  anfpporlpnt 
debt  due  to  him.  This  is  the  rule  of  the  Eoman  and  forRi}^  Imw^  a  a 
well  as  of  the  common  law.^'  The  plain  reason  is  that  it  would  be 
a  departure  from  the  tacit  obligations  of  the  contract.  No  intention 
to  give  a  lien  for  a  debt  can  be  implied  from  the  grant  of  a  mere 
favor. 

Generally  speaking,  the  property  loaned  is  to  be  restored  to  the 
lender  or  person  entitled  to  the  custody,  unless  it  has  been  agreed 
that  the  restitution  shall  be  to  some  other  person.  If  the  lender  is 
dead,  it  is  to  be  restored  to  his  personal  representative,  if  known. '^ 
If  not  known  or  no  administration  is  taken  on  his  estate,  the  bor- 
rower may  detain  the  thing  until  an  administration  is  made  known. 
If  the  lender  is  a  woman,  and  she  afterwards  marries,  restitution  is 
to  be  made  to  her  husband,  and  not  to  her  personally.  So,  if  the 
lender  has  been  put  under  guardianship,  the  return  must  be  to  his 
guardian.  And  if  the  lender  has  become  n<  i  compos  mentis  or  a 
lunatic,  and  has  no  guardian,  a  redelivery  to  him  will  not  be  good; 

«»  But  see  Esmay  v.  Fanning,  supra. 

TO  As  to  the  place  of  making  a  demand  for  a  return,  see  Mason  v.  Briggs, 
16  Mass.  453;   Francliot  v.  Leash,  5  Cow.  (N.  Y.)  50«. 

71  Scranton  v.  Baxter,  4  Sandf.  (N.  Y.)  5. 

72  Story,  Bailm.  §  2G2.  But  a  delivery  to  one  not  authorized  to  receive  the 
property  is  a  conversion,  though  made  in  good  faith  and  without  uojiligeuce. 
Packard  v.  Getman,  4  Wend.  (N.  Y.)  613;  Coykendall  v.  Eaton,  55  Barb.  (N. 
Y.)  188;  Devereux  v.  Barclay,  2  Barn.  &  Aid.  702;  Stephenson  v.  Hart,  4 
Bing.  476;  Green  v.  Hollingsworth,  5  Dana  (Ky.)  173. 

13  Story,  Bailm.  §  264. 

T*  Booth  v.  Terrell,  16  Ga.  20,  26;   SmUey  v.  Allen,  13  Allen,  465w 


100  BAILMENTS    FOR   THE    BAILEE'S    SOLE    BENEFIT.  [Ch.  3 

but  the  thing  must  be  kept  until  a  competent  party  exists  to  whom  it 
may  be  delivered.  But  a  redelivery  to  a  minor  will  be  good  if  he  has 
not  any  guardian  appointed  over  him;  and,  even  if  he  has  a  guardian, 
if  the  thing  has  been  usually  intrusted  to  the  minor  by  his  guardian.* 
Even  if  the  lender  is  not  the  owner  of  the  thing,  the  borrower  must 
ordinarily  restore  it  to  him,'"'  and  has  no  right  to  set  up  the  title  of  a 
mere  stranger  against  him;  for  the  lender  has,  by  his  contract,  a 
right  to  be  reinstated  in  his  possession.^ °  However,  if,  in  the  mean- 
time, a  recovery  has  been  had  against  the  borrower  without  his 
default,  or  if  the  thing  has  been  attached  in  his  hands  in  an  adverse 
suit,  that  will  constitute  a  sufficient  excuse.^^  If  the  borrower 
actually  restores  the  thing  to  the  true  and  real  owner,  without  any 
injury  or  injustice  to  the  lender,  he  will  no  longer  be  liable  to  any 
action. ''*  In  like  manner,  if  the  thing  is  taken  out  of  the  possession 
of  the  borrower  by  the  real  owner,^®  or  if,  upon  a  threat  by  such 
owner  to  sue  him,  he  has  delivered  up  the  thing  to  him,  he  will  be 
discharged.*"  If  the  loan  has  been  to  several  persons  jointly,  they 
are  all  responsible  in  solido  (each  for  the  whole)  for  the  return ;  and, 
of  course,  a  return  by  one  is  a  discharge  of  all,  as  a  misuser  by  one  is 
a  misuser  by  all. 

*  story,  Bailm.  §  265. 

TBNudd  V.  Montanye,  38  Wis.  511;   Simpson  v.  Wrenn,  50  111.  222. 

Te  But  he  may  set  up  an  assignment  In  bankruptcy.  Lain  v.  Gaither,  72  N. 
C.  234. 

TT  Edson  V.  Weston,  7  Cow.  (N.  Y.)  278;  Tlie  Idaho,  93  U.  S.  575.  And  see 
Biddle  v.  Bond,  34  Law  J.  Q.  B.  137;  Wilson  v.  Anderton,  1  Barn.  &  Adol.  450; 
Cheesman  v.  Exall,  6  Exch.  841;  European  &  A.  Royal  Mail  Co.  v.  Royal  Mall 
Steam-Packet  Co.,  8  Jur.  (N.  S.)  136.  Cf.  Sheridan  v.  New  Quay  Co.,  4  C. 
B.  (N.  S.)  G50. 

T8  Whlttier  v.  Smitl-,  11  Mass.  211;    The  Idaho,  93  U.  S.  575. 

»•  Shelbury  v.  Scotsford,  Yel.  23.    And  see  Watkins  v.  Roberts,  28  Ind.  167. 

••  Llttledale,  J.,  in  Wilson  v.  Anderton,  1  Barn,  &  AdoL  450,  457. 


Ma/1  I^- 


^sT 


§  24]         BAILMEMTS  FOB  MUTUAL  BENEFIT — PLEDQB.  101 

CHAPTER  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT— PLEDGB. 

24.  In  General. 

25.  Pledge  Deflned. 

26.  Establishment  of  Relation. 
27-29.  Title  of  Pledgor. 

30.  What  may  be  Pledged. 

81-32.  Delivery. 

33.  Rights   and  Liabilities— Of   Pledgor. 

(a)  Implied  Warranty  of  Title. 

(b)  Interest  Assignable. 

(c)  Interest  Subject  to  Judicial  Sale. 

(d)  Right  to  Sue  Third  Persons. 

(e)  Right  to  Redeem. 

34.  Of  Pledgee  before  Default. 

(a)  Interest  Assignable. 

(b)  Title  Acquired  by  Pledgee. 

(c)  Special  Property  of  Pledgee. 

(d)  Right  to  Use  the  Pledge. 

(e)  Profits  of  the  Pledge. 

(f)  Expenses  of  the  Pledge. 

(g)  Care  Required  by  the  Pledgee, 
(h)  Redelivery  of  the  Pledge. 
85.         Of  Pledgee  after  Default. 

(a)  Suit  on  the  Pledge  Debt 

(b)  Sale  of  Pledged  Property. 
36.    Termination  of  Pledge. 

IN  GENERAL. 

94.  Bailments  for  the  mutual  benefit  of  the   bailor  and 
bailee  may  be  divided  into  two  classes; 

(a)  Pignus,  or  pledge  (p.  102). 

(b)  Locatio,  or  hiring  (p.  177). 

The  general  principles  applicable  to  gratuitous  bailments  are  in 
the  main  applicable  to  mutual  benefit  bailments  also.  The  funda- 
mental distinction  is  that  in  the  latter  class  of  bailments  each  party 
contemplates  receiving  some  benefit  or  advantage  from  the  bailment. 


102  BAILMENTS    FOR   MUTUAL    BENEFIT — PLEDGE.  [Ch.   4 

On  this  fact  depend  many  important  differences  in  th.e  rights  and  lia- 
bilities of  the  parties.  It  is  immaterial  whether  the  benefit  is  in 
fact  ultimately  received  or  not.  Even  a  contingent  benefit  is  suffi- 
cient to  bring  a  bailment  into  this  class.  But  it  is  essential  that 
the  bailment  be  constituted  with  the  intention  of  securing  such  bene- 
fit. This  benefit,  while  commonly  money  on  one  part  at  least,  may 
be  anything  else  of  value.  For  example,  when  one  hires  a  horse, 
the  money  paid  on  one  hand,  and  the  use  of  the  horse  on  the  other, 
make  the  bailment  one  for  mutual  benefit.  So,  in  the  case  of  a 
pledge  or  pawn,  the  benefit  on  one  side  consists  in  procuring  the  loan, 
and  on  the  other  in  having  security.* 

Bailments  of  this  class  are  created  for  an  almost  Infinite  variety 
of  purposes.  They  constitute  by  far  the  most  numerous  class  of 
bailments,  and  their  importance  justifies  a  very  much  more  elaborate 
and  detailed  discussion  than  has  been  given  to  the  subject  of  gratui- 
tous bailments.  For  the  purpose  of  indicating  subdivisions  in  the 
analysis  of  mutual  benefit  bailments,  the  names  of  the  corresponding 
classes  in  the  civil  law  have  been  used,  they  being  the  natural  and 
logical  divisions  of  the  subject,  and  having  the  advantage  of  famil- 
iarity. Bailments  for  the  mutual  benefit  of  the  parties  are  accord- 
ingly divided  into  two  classes, — pignus,  or  pledge;  and  locatio,  or 
hiring.     Each  will  be  considered  in  turn. 

PLEDGE  DEFINED. 

25.  A  pledge  or  pa^wrn  is  a  bailment  to  secure  the  payment 
of  a  debt,  or  the  performance  of  an  engagement,  ac- 
companied by  a  power  of  sale  in  case  of  default. 

Historical. 

The  giving  possession  of  a  chattel  to  secure  a  ^ebt  or  to  insure  the 
performance  of  some  engagement  is  of  great  antiquity,  and  laws 
governing  such  pawns  or  pledges  are  to  be  found  among  all  the 
nations  of  ancient  times.  An  instance  of  this  is  to  be  found  in  the 
regulations  of  the  IMosaic  law  as  to  the  taking  of  pledges,  and  this 
law  is  especially  noticeable  by  reason  of  the  care  taken  of  the  inter- 

*  For  presumptions  as  to  intended  benefit,  see  ante,  p.  45,  "Bailments  for 
Bailor's  Sole  Benefit." 


§25]  PLEDGE   DEFINED.  103 

ests  of  the  pledgor,  and  the  prohibition  of  undue  severity  on  the  part 
of  the  pledgee.  Thus,  it  is  said:  "No  man  shall  take  the  nether  or 
the  upper  millstone  to  pledge,  for  he  taketh  a  man's  life  to  pledge." 
In  another  place  it  is  commanded:  "If  thou  at  all  take  thy  neighbor's 
raiment  to  pledge,  thou  shalt  deliver  it  to  him  by  that  the  sun  goeth 
down."  Similar  laws  are  also  to  be  found  among  the  Chinese. 
Among  the  Komans  the  subject  of  pledges  was  recognized  and  regu- 
lated by  law,  and  from  these  laws  may  easily  be  traced  the  origin  of 
many  of  the  rules  of  our  law  in  regard  to  this  branch  of  bailments. 
In  English  history  the  first  to  make  a  profession  of  loaning  money 
upon  the  bailment  of  personal  chattels  as  security  therefor  were  the 
Jews;  and  for  their  risk  they  demanded  the  most  exorbitant  inter- 
est, this  in  some  cases  amounting  to  the  rate  of  05  per  cent.  After 
the  expulsion  of  the  Jews  under  Edward  I.,  the  Lombards  acquired  a 
monopoly  of  the  business  of  pawnbroking.  At  this  time,  and  in  fact 
until  1546,  the  taking  of  interest  for  loans  was  unlawful ;  and  it  is 
from  the  date  just  given  that  we  can  trace  the  recognition  of  pawn- 
broking  as  a  business,  and  its  regulation  by  the  law  of  England. 
From  that  time  to  the  present  the  law  has  acknowledged  the  ju.-tice 
of  allowing  one  who  wishes  to  borrow  money  or  secure  accommoda- 
tion from  another  to  deliver  property  to  the  lender  as  a  security  for 
the  debt,  and  of  permitting  the  lender  to  demand  interest  for  the 
use  of  his  money.  Each  party  has  been  by  law  secured  in  his  respec- 
tive rights,  and  guarded  so  far  as  possible  from  extortion  or  fraud 
on  the  part  of  the  other. 

In  many  countries,  as  in  France,  the  business  of  pawnbroking  is 
carried  on  as  a  public  institution,  by  which  money  may  be  borrowed 
by  the  poor  at  a  reasonable  rate  of  interest.  In  England  and  in  this 
country,  however,  it  is  carried  on,  as  any  other  enterprise,  by  indi- 
viduals; and  in  almost  all  of  the  states  the  business  is  regulated  by 
statute.  Pawnbrokers  are  those  who  make  a  business  of  Inaninn;  ialujA 
money  on  the  security  of  corporeal  proi>erty,  rather  than  incor- 
poreal property,  such  as  stocks  or  warehouse  receipts. 

Definitions. 

As  in  the  case  of  other  bailments,  many  and  various  definitions 
of  a  pledge  or  pawn  have  been  given.  The  earliest  to  be  found  in 
the  English  law  is  that  ^ven  by  Lord  Holt,^  who  defines  it  as  exist- 

1  In  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  913. 


104  BAILMENTS    FOR    MUTUAL   BENEFIT PLEDGE,  [Ch.   4 

Ing  "when  goods  or  chattels  are  delivered  to  another,  to  be  a  se- 
curity to  him  for  money  borrowed  of  him  by  the  bailor."  By  Sir 
William  Jones  '  it  is  defined  to  be  "a  bailment  of  goods  by  a  debtor 
to  his  creditor,  to  be  kept  by  him  till  his  debt  is  discharged."  In 
both  of  these  definitions  there  is  no  recognition  of  the  fact  that  the 
pledge  need  not  be  solely  to  secure  the  payment  of  money,  but  may 
also  be  for  the  purpose  of  insuring  the  performance  of  some  engage- 
ment on  the  part  of  the  bailor,  or  even  of  a  third  party,  on  whose 
account  the  bailor  has  made  the  bailment.  This  defect  is,  in  a 
measure,  remedied  in  Mr.  Story's  ^  definition  of  a  pledge  as  "a  bail- 
ment of  personal  property  as  security  for  some  debt  or  engagement." 
Similar  to  this  is  Mr.  Schouler's  *  statement  that  it  is  "the  bailment 
of  a  chattel  as  security  for  some  debt  or  engagement."  The  defini- 
tion given  by  Mr.  Jones  in  his  work  on  Pledges "  is  substantially  the 
same  as  that  of  the  black-letter  text.®  He  says,  "A  pledge  may  be 
defined  to  be  a  deposit  of  personal  property  as  security,  with  an  im- 
plied power  of  sale  upon  default."  This  last  proposition,  the  power 
of  sale  upon  default,  which  the  other  writers  quoted  have  omitted, 
is  a  very  important  part  of  the  definition  of  a  pledge,  for  in  the 
power  of  sale  lies  the  principal  distinction  between  pledges  and 
iiens.^  Thus,  a  mechanic  who  has  a  lien  for  his  woi'k  and  materials 
has  no  legal  right  to  sell  the  chattel  for  his  reimbursement.  It  is 
a  right  "to  retain,"  "to  keep  possession  of,"  "to  detain,"  etc.,  until 
he  is  paid.  Such  a  right  is  said  to  be  a  personal  right  to  detain,  in 
contradistinction  to  an  interest  in  the  property;  and  if  the  party 
parts  with  the  article,  by  a  pledge,  sale,  or  otherwise,  he  loses  his 
lien.^  Hence  the  distinction  between  such  a  lien  for  work  and  ma- 
terials," as  given  by  what  was  anciently  called  the  "custom  of  the 

2  Bailm.  35. 
8  Bailm.  §  286. 

*  Bailm.  158. 

6  Jones,  Pledges,  1. 

«  An  assignment  by  deed  of  all  an  heir's  Interest  In  hfs  ancestor's  estate, 
to  secure  an  indebtedness  to  the  estate,  has  been  held  a  pledge.  In  re  Han- 
dy's  Estate,  167  Pa,  St.  552,  31  Atl.  983;  Steams  v.  Marsh,  4  Denlo  (N.  Y.)  227. 

T  Pothonier  v.  Dawson,  Holt,  N.  P.  383;  Doane  v.  Russell,  3  Gray  (Mass.) 
382,  383;   Thames  Iron- Works  Co,  v.  Patent  Derrick  Co.,  1  Johns.  &  H.  93, 

«  See  post,  p.  233. 

•  See  post,  p.  223. 


§    25]  PLEDGE    DEFINED.  106 

realm,"  or  now  the  "general  law,"  and  an  express  pawn  or  pledge 
of  goods,  by  the  owner,  as  collateral  security  for  a  loan  of  money. 
In  the  latter  case  it  is  now  held  that  when  the  debt  has  become  due, 
and  remains  unpaid,  the  creditor,  after  a  reasonable  time,  may  sell 
the  pledge;  ^°  but  otherwise  when  there  is  a  mere  lien,  as  in  the 
case  of  mechanics,  innkeepers,  and  others,  by  custom.^*  Spi-cial 
cases  growing  out  of  the  nature  of  the  property  pledged,  in  which  a 
sale  is  improper,  will  be  considered  later. 

In  the  Roman  law  a  pledge  or  pawn  is  called  "pignus,"  but  it  was 
the  rule  of  the  civil  law  that  a  pledge  could  never  be  sold,  unless 
authorized  by  special  agreement,  except  under  a  judicial  sentence; 
and  this  appears  to  be  the  law  at  this  day  in  many  countries  in  Eu- 
rope, and  it  was  the  rule  in  the  old  English  law  in  the  time  of  Glan- 
ville.^*  In  the  Roman  law,  also,  a  pawn  (pignus)  was  distinguished 
from  a  hypothecation  (hypotheca),  in  this:  that  in  the  former  the 
possession  was  delivered  to  the  pawnee;  in  the  latter,  it  was  re- 
tained by  the  pawner.  However,  the  words  "pignus''  and  "hypoth- 
eca" seem  often  to  have  been  confounded.^ ^ 

Same — Statutory  Definitions. 

In  a  number  of  states  pledges  have  been  defined  by  statute.  Thus, 
in  California,  "a  pledge  is  a  deposit  of  personal  property  by  way  nf 
security  for  the  performance  of  another  act."  ^*  And  this  definition 
has  been  copied  by  the  Dakota  and  Idaho  Codes.^"  In  Georgia  the 
following  definition  is  given :  "A  pledge  or  pawn  is  property  depos- 
ited with  another  as  security  for  the  payment  of  a  debt.  Delivery 
of  the  property  is  essential  to  this  bailment,  but  promissory  notes 
and  evidences  of  debt  may  be  delivered  in  pledge.  The  delivery  of 
title  deeds  creates  no  pledge."  ^*^  The  Louisiana  law  is  that  "the 
pledge  is  a  contract  by  which  one  debtor  gives  something  to  his 
creditor  as  a  security  for  his  debt."  ^^ 

10  Doane  v.  Russell,  3  Gray  (Mass.)  382;  and  see  post,  p.  1G2. 

11  See  post,  p.  233. 

12  Lib.  10,  cc.  1,  6;   Hart  v.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62. 
18  Story,  Bailm.  §  2SG;   Doak  v.  Bank,  G  Ired.  (N.  C.)  309. 

14  Civ.  Code  Cal.  §  298G. 
10  Civ.  Code  Dak.  §  1757. 
18  Code  Ga.  1882,  §  2138. 
17  Rev.  Civ.  Code  La.  1870,  art.  3133. 


106  BAILMENTS    FOR   MUTUAL   BENEFIT PLEDQE.  [Ch.  4 

Same — Collateral  Security. 

The  term  "collateral  security"  has  come  into  quite  frequent  use 
of  late,  in  designating  pledges  of  incorporeal  personalty.  But  the 
term  is  also  applied  to  transactions  which  are  in  fact  chattel  mort- 
gages, and  it  is  often  used  loosely  and  improperly  in  other  senses.*' 

Lien  and  Pledge  Distinguished. 

Pledges  are  most  nearly  allied  to  liens  and  to  chattel  mortgages. 

In  the  case  of  a  lien,  as  in  that  of  a  pledge,  the  bailor  retains  the 
general  property  in  the  chattel,  and  the  bailee  has  only  a  special 
property.  It  is  the  right  which  is  given  by  this  special  property  in 
each  case  which  distinguishes  the  lien  from  the  pledge.  In  the  for- 
mer the  bailee,  by  virtue  of  his  special  property  in  the  chattel,  has 
himself  the  right  to  retain  the  thing;  but  this  is  only  a  personal 
right,  and  may  not  be  transferred.  Upon  this  point  it  was  said  by 
Lord  Ellenborough,  C.  J.,  in  McCombie  v.  Davies,^^  that  "nothing 
could  be  clearer  than  that  liens_were  personal,  and  could  not  be 
transferred  to  third  persons  by  any  tortious  pledge~of  the  principal's 
goods."  With  regard  to  the  distinction  between  liens  and  pledges, 
Chief  Justice  Gibbs,  in  Pothonier  v.  Dawson,^^  said:  "Undoubtedly, 
as  a  general  proposition,  a  right  of  lien  gives  no  right  to  sell  the 
goods.  But,  when  goods  are  deposited  by  way  of  security  to  indem- 
nify a  party  against  a  loan  of  money,  *  *  ♦  the  lender's  rights 
are  more  extensive  than  such  as  accrue  under  an  ordinary  lien  in 
the  way  of  trade."  If  the  one  having  the  lien,  parts  with  the  pos- 
session of  the  goods,  unless,  indeed,  to  one  who  is  his  own  agent,  and 
with  the  intent  that  such  agent  shall  have  merely  the  custody  of 
them,  he  thereby  loses  his  lien;  but  in  the  case  of  the  pledge  the 
bailor  gives  the  bailee  the  right  to  exercise  authority  over  the  thing, 
even  to  the  extent  of  transferring  it,  if  the  debt  is  not  paid  or  the 
covenant  performed  by  the  stipulated  time.^* 

Chattd  Mortgage  and  Pledge  Distinguished. 

In  the  case  of  a  chattel  mortgage,  the  title  to  the  thing  passes  to 
the  mortgagee,  but  will  be  defeated  by  the  payment  by  the  mortgagor 
of  his  debt  within  the  stipulated  time.  In  the  case  of  a  pledge  the 
title  remains  in  the  pledgor,  and,  until  the  expiration  of  the  time  in 

18  Penney  v.  Lynn,  58  Minn.  371,  59  N.  W.  1043. 

2  2  7  East.  6.  23  Holt,  N.  P.  383,  385.  24  See  post.  p.  \?,^. 


§   25]  PLEDGE    DEFINED.  107 

which  he  may  regain  possession  by  payment  of  his  debt  or  perform- 
ance of  his  covenant, the  pledgee  is  nothing  more  than  a  bailee  of  the 
chattel.  Mr.  Powell,  in  his  Treatise  on  Mortgages,  ="*  says,  "The  strik- 
ing distinction  between  a  mortgage  of  lands  or  goods,  and  a  pawn  of 
goods,  is  that  in  the  former  case  the  mortgagee  has,  after  the  condi- 
tion forfeited,  an  absolute  interest  in  the  thing  mortgaged,  whereas 
the  pawnee  has  but  a  special  property  in  the  goods,  to  detain  them 
for  his  security."  ^°  A  mortgage  is  a  pledge,  and  more;  for  it  is  a 
pledge,  to  become  an  absolute  interest,  if  not  redeemed  at  a  certain 
time.^^  A  pledge  is  a  deposit  of  personal  effects,  not  to  be  taken 
back,  but  on  payment  of  a  certain  sum,  which,  by  express  stipula- 
tion, or  the  course  of  trade  is  to  be  a  lien  upon  them."  ^* 

2  0 1  Pow.  Mortg.  3. 

28  Jones  V.  Smith,  2  Ves.  Jr.  872;  Ryall  v.  Rolle,  1  Atk.  165;  Cortelyou  t. 
Lansing,  2  Caines,  Cas.  (N.  Y.)  200;  Barrow  v.  Paxton,  5  Johns.  (N.  Y.)  258; 
Strong  V.  Tompkins,  8  Johns.  (N.  Y.)  76;  McLean  v.  Walker,  10  Johns.  (N.  Y.) 
471;  Wilson  v.  Little,  2  N.  Y.  443;  Haskius  v.  Kelly,  1  Rob.  (N.  Y.)  100;  Par- 
shall  V.  Eggert,  52  Barb.  (N.  Y.)  367;  Winchester  v.  Ball,  54  Me.  558;  Wal- 
cott  V.  Keith,  22  N.  H.  196;  Whittle  v.  Skinner,  23  Vt.  531;  Wright  v.  Ross, 
36  Cal.  414;  Heyland  v.  Badger,  85  Cal.  404;  Dewey  v.  Bowman,  8  Cal.  145; 
Waldie  v.  Doll,  29  Cal.  556;  Goldstein  v.  Hort,  30  Cal.  372;  Gay  v.  Moss,  34 
Cal.  125;  Ponce  v.  McElvy,  47  Cal.  154;  Meyerstein  v.  Barber,  L.  R.  2  C.  P. 
38,51;  Id.,L.R.4H.  L.  317;  Ratcliff  v.  Davies,  Cro.  Jac.  244;  Tannahill  v.Tuttle, 
3  Mich.  104;  Brysou  v.  Rayuer,  25  Md.  424.  Shares  of  corporate  stock  may  be 
pledged,  and,  although  their  owner  transfers  them  absolutely  In  form,  yet 
If  the  intention  of  the  parties  is  that  the  transferee  shall  hold  them  only 
as  security  for  money  lent,  and  that  the  owner  may  redeem  them  at  any  time 
(even  after  the  loan  falls  due)  before  the  lender  has  exercised  his  power  of 
sale,  the  transaction  is  a  pledge,  not  a  mortgage.  Wilson  v.  Little,  2  N.  Y. 
443.  The  pledge  of  personal  property  is  a  "mortgage"  thereof,  wltliin  the 
attachment  act,  the  word  being  therein  used  in  a  general  sense,  meaning  se- 
curity; and,  by  receiving  such  pledge  as  security  for  a  debt,  the  creditor 
gives  up  his  right  to  enforce  his  debt  by  attachment.  Payne  v.  Beusloy.  8 
Cal.  260. 

2T  Lickbarrow  v.  Mason,  6  East,  21,  25;  Sims  v.  Canfield,  2  Ala.  555;  Brown 
V.  Bement,  8  Johns.  (N.  Y.)  75;  McLean  v.  Walker,  10  Johns.  (N.  Y.)  471; 
Eastman  v.  Avery,  23  Me.  248;  Day  v.  Swift,  48  Me.  368;  Gleason  v.  Drew, 
9  Greenl.  (Me.)  79,  82;  Haven  v.  Low,  2  N.  H.  13;  Ash  v.  Savage,  5  N.  H.  545; 
Lewis  V.  Stevenson,  2  Hall  (N.  Y.)  63,  83;  Homes  v.  Crane,  2  Pick.  (Mass.) 
605,  610;  Ward  v.  Sumner,  5  Pick.  (Mass.)  59,  60;  Bonscy  v.  Amec,  8  Pick. 
(Mass.)  236. 

28  Portland  Bank  v.  Stubbs,  6  Mass.  421,  425;  Tucker  v.  Buffington,  15  Mass. 


108  BAILMENTS    FOR   MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

In  cases  where  it  is  uncertain  as  to  whether  the  transaction  in 
question  is  a  mortgage  or  a  pledge,  it  will,  if  the  facts  will  bear  out 
such  a  construction,  be  held  to  be  a  pledge.  Whether  a  transaction 
amounts  technically  to  a  mortgage  or  a  pledge  is  sometimes  a  nice 
question,  but  the  ultimate  object  of  the  inquiry  is  not  so  much  to 
name  the  transaction  as  to  ascertain  what  was  the  intention  and 
understanding  of  the  parties  to  it;  and  therefore  such  intent,  when 
ascertained,  ought  to  control.  In  the  case  of  a  pledge  the  creditor 
takes  the  possession,  actual  or  constructive,  of  the  goods;  while  in 
that  of  a  mortgage  there  is  a  transfer  of  the  title  to  him,  but  not  nec- 
sarily  of  the  possession.  In  all  cases,  then,  where  personal  property 
is  given  as  a  security  for  a  debt  or  engagement,  accompanied  by  a 
change  of  possession,  either  actual  or  constructive,  the  transaction 
better  comports  with  the  character  of  a  pledge  than  a  mortgage;  and 
where  the  transaction  imports  nothing  more  than  giving  a  security, 
without  a  sale  or  change  of  title  of  the  property,  the  law  favors  the 
conclusion  that  it  was  intended  as  a  pledge,  and  not  a  mortgage.^' 

Sale  and  Pledge  Distinguished. 

The  distinction  between  a  sale  and  a  bailment,  in  general,  was 
pointed  out  at  some  length  in  the  first  chapter,^"*  and  here  only  a 
few  applications  of  those  rules  to  cases  of  pledges  will  be  mentioned. 
Thus,  an  absolute  bill  of  sale,  accompanied  by  a  delivery  of  the  prop- 
erty, may  be  shown  to  be  a  pledge,  if  such  was  the  intention  of  the 
parties.'^     And  this  construction  will  be  preferred,  as  stated  in  the 

476,  480;  Fletcher  v.  Howard,  2  Alk.  115;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet. 
386,  449. 

2  9  Lucketts  V.  Townsend,  8  Tex.  119;  Wilson  v.  Brannan,  27  Cal.  258,  271; 
Lewis  V.  Varnum,  12  Abb.  Prac.  (N.  Y.)  305,  308;  Warren  v.  Emerson,  1  Curt. 
239,  241,  Fed.  Cas.  No.  17,195;  West  v.  Crary,  49  N.  Y.  423,  425;  Wood  worth 
V.  Morris,  56  Barb.  (N.  Y.)  97,  104;  Bank  of  British  Columbia  v.  Marshall, 
11  Fed.  19.  A  pledge  need  not  be  recorded  as  a  chattel  mortgage.  First 
Nat.  Bank  of  Cincinnati  v.  Kelly,  57  N.  Y.  34;  Parshall  v.  Eggert,  54  N.  Y.  18; 
Griffin  v.  Rogers,  38  Pa.  St.  382;  McCready  v.  Haslock,  3  Tenn.  Ch.  13;  Shaw 
V.  Wilshire,  65  Me.  485;  Harris  v.  Birch,  9  Mees.  &  W.  591;  Ward  v.  Sumner, 
5  Pick.  (Mass.)  58,  59;  Wright  v.  Bircher,  5  Mo.  App.  322;  Langdon  v.  Buel, 
9  Wend.  (N.  Y.)  80;  Atwater  v.  Mower,  10  Vt.  75. 

80  See  ante,  p.  6. 

»i  Walker  v.  Staples,  5  Allen  (Mass.)  34;  Whitaker  v.  Sumner,  20  Pick. 
(Mass.)  399;    Hazard  v.  Loring,  10  Cush.  (Mass.)  267;    Kimball  v.  Hildreth, 


§    26]  ESTABLISHMENT   OF   RELATION.  109 

last  paragraph,  to  one  which  would  make  the  transaction  a  mort- 
gage.^^  But  there  may  be  a  conditional  bill  of  sale,  which  will  con- 
stitute a  mortgage.^"  In  the  same  way  a  bill  of  sale  with  an  agree- 
ment to  repurchase  may  be  a  pledge  or  a  mortgage,  according  to  the 
circumstances  and  intention  of  the  parties.'*  The  necessity  of  dis- 
tinguishing between  a  sale  and  a  pledge  often  arises  when  securities 
are  assigned  by  a  debtor  to  a  creditor.^ '^  The  presumption  is  always 
that  the  transfer  was  as  collateral  security  for  his  indebtedness,  and 
not  in  pay  me  at  of  it.^® 

ESTABLISHMENT   OF  RELATION. 

26.  In  addition  to  -what  is   essential  to  any  bailment,  for 
the  establishment  of  a  pledge  there  must  be: 

(a)  Mutual  assent  of  the  parties  (p.  109). 

(b)  A  debt  or  engagement  secured  (p.  111). 

Must  be  Established  by  Contract. 

Pledges  cannot  be  created  by  operation  of  law.  They  arise  only  by 
mutual  agreement  of  the  parties,'^  though  this  assent  may  be  implied 
from  their  conduct,  if  not  expressly  given.  That  it  must  be  vol- 
untary has  already  been  stated,  in  the  discussion  of  the  bailment 
contract  in  general.'*     The  rules  there  given  apply,  of  course,  to  the 

8  Allen  (Mass.)  167;  Bright  v.  Wagle,  3  Dana  (Ky.)  252;  Ex  parte  Fitz,  2 
Low.  519,  Fed.  Cas.  No.  4,837;  Newton  v.  Fay,  10  Allen  (Mass.)  505;  Jones  v. 
Rahilly,  16  Minn.  820  (Gil.  283);  Shaw  v.  Wilshire,  65  Me.  485;  Morgan  v. 
Dod,  3  Ck)lo.  551;  Blodgett  v.  Blodgett,  48  Vt.  32. 

8  2  Thompson  v.  Dolllver,  132  Mass.  103. 

88  Brown  v.  Bement,  8  Johns.  (N.  Y.)  75;  Clark  v.  Henrj',  2  Cow.  (N.  Y.) 
824;  Milliken  v.  Dehon,  27  N.  Y.  364;  Homes  v.  Crane,  2  Pick.  (Mass.)  607; 
Fraker  v.  Reeve,  36  Wis.  85;  Wood  v.  Dudley,  8  Vt.  430;  Murdoek  v.  Colum- 
bus Ins.  Co.,  59  Miss.  152;  Gregory  v.  Morris,  96  U.  S.  619;  Laflin  &  Rand 
Powder  Co.  v.  Burkhardt,  97  U.  S.  110. 

8  4  Hines  v.  Strong,  46  How.  Prae.  (N.  Y.)  97;  Bright  v.  Wagle,  3  Dana  (Ky.) 
252. 

8B  Standen  v.  Brown,  83  Hun,  610,  81  N.  Y.  Supp.  535. 

8  6  Jones  V.  Johnson,  3  Watts  &  S.  (Pa.)  276;  Perlt  v.  Pittfield,  B  Rawle  (Pa.) 
166;  Leas  v.  James,  10  Serg.  &  R.  (Pa.)  307;  Eby  v.  Hoopes,  1  Penny.  (Pa.) 
175. 

87  Mead  v.  Bunn,  32  N.  Y.  275. 

38  Ante,  p.  10.      A  pledge  obtained  by  false  representations  of  the  pledgor 


110  BAILMENTS    FOR    MUTUAL   BENEFIT — PLEDGE.  [Ch.   4 

creation  of  a  pledge,  and  will  not  be  rei)eated  in  the  following  para- 
graphs, which,  will  be  devoted  to  the  principles  peculiar  to  pledges. 

Same — Legality. 

I  When  the  debt  which  the  pledge  is  given  to  secure  is  void  on  ao- 

/count  of  illegality  of  consideration,  the  pledge  is  nevertheless  effec- 

/tual.      Though  the  pledgee  cannot  recover  on  the  debt  itself,  yet  he 

/  can  retain  the  pledge  until  redemption.     The  pledgor  cannot  re- 

/  cover  possession  without  redeeming,  because  he  would  have  to  set 

/    up  his  own  wrong;  '*  and,  for  the  same  reason,  the  pledgee  cannot  set 

/     up  the  illegality  to  defeat  redemption,  when  it  is  sought  by  the 

/     pledgor.*" 

Same — Parties. 

The  competency  of  infants,  married  women,  and  others,  whose  per- 
sonal status  varies  from  the  normal,  as  parties  to  bailment  contracts, 
has  already  been  discussed.*^  A  partner  may  pledge  firm  property 
for  partnership  debts  without  the  consent  of  his  copartners.**  A 
corporation  may  pledge  unissued  stock  held  by  it  in  trust  for  the  ad- 
vancement of  its  best  interests.*^  So  a  company  may  pledge  its 
own  mortgage  bonds.**  The  power  of  corporations  to  act  as  bailees 
has  been  stated  in  a  previous  chapter.*' 

vests  no  title  in  iiirn,  and  ttie  pledgee  need  not  redeem,  to  entitle  him  to  pos- 
session.    Mead  v.  Bunn,  82  N.  Y.  275. 
8  9  Taylor  v.  Chester,  L.  R.  4  Q.  B.  309;   King  v.  Green,  6  Allen  (Mass.)  139. 

40  King  V.  Green,  supra;  Jones,  Pledges,  §  354. 

41  Ante,  p.  16. 

42  Smith  V.  Dennlson,  101  111.  531;  Galway  v.  FuUerton,  17  N.  J.  Bq.  389; 
Bohler  v.  Tappan,  1  Fed.  469. 

43  Combination  Trust  Co.  v.  Weed,  2  Fed.  24. 

4  4  Lehman  v.  Tallassee  Manuf  g  Co.,  64  Ala,  567. 

4  5  Ante,  p.  20.  Where  a  corporation  cannot  legally  hold  the  stock  of  an- 
other corporation,  it  cannot  take  such  stock  as  a  pledge.  Franklin  Bank  v. 
Commercial  Bank,  36  Ohio  St.  350.  As  to  national  banks  as  pledgees,  see 
Union  Gold-Mining  Co.  v.  National  Bank,  96  U.  S.  640;  Germania  Nat.  Bank 
V.  Case,  99  U.  S.  628;  Shoemaker  v.  National  Mechanics'  Bank,  2  Abb.  (U.  S.) 
416,  Fed.  Cas.  No.  12,801;  Duncomb  v.  New  York,  H.  &  N.  R.  Co.,  84  N.  Y. 
190;  Da3i:on  Nat.  Bank  v.  Merchants'  Nat  Bank,  37  Ohio  St.  208;  Hagar  v. 
Union  Nat  Bank,  63  Me.  509. 


§    20]  ESTABLISHMENT   OF   RELATION.  HI 

Debt  Secured. 

In  a  pledge,  the  debt  or  contract  which  the  deposit  is  made  to 
secure  is  determined  by  the  contract.  It  is  immaterial  whether  the 
debt  or  engagement  for  which  the  security  is  given  is  that  of  the 
pledgor,  or  of  some  other  person;  for,  if  there  is  an  assent  by  all 
the  proper  parties,  it  is  equally  obligatory  in  each  case."  It_may  be 
delivered  as  security  fx?r  a  future  debt  *^  or  engagamantf  a,g_wellas 
for  a  past  debt^  for  one  or  for  many  debts  and  engagements;  *' 
upon  condition,  or  absolutely;  for  a  limited  time,  or  for  an  indefi- 
nite period.'^''  A  £j edge  may  be  inade_a  continuing  security,  whii^i 
will  apply  to jany  future^  transaction  between  the  parties  that  ij 
within  theiimits  of  the  agreement." '^  It  may  also  be  implied  from 
circumstances,  as  well  as  arise  by  express  agreement;   and  it  mat- 

*8  A  liability  for  another  on  a  conti-act  still  in  force  is  a  sufficient  consideni- 
tion  for  a  pledge,  and  the  ratio  of  the  consideration  to  the  value  of  the  thing 
pledged  is  of  no  importance.  Jewett  v.  Warren,  12  Mass.  300.  When  a 
third  person  pledges  his  property  as  securitj'  for  the  payment  of  a  debt  or  ob- 
ligation of  another,  such  property  will  occupy  the  same  position  as  that  of 
surety  of  the  debtor,  and  any  change  in  the  contract  of  suretyship  which 
would  discharge  a  surety  will  release  and  discharge  property  so  held  as  col- 
lateral. Price  V.  Dime  Sav.  Bank,  124  111.  317,  15  N.  E.  754.  The  drawer  of 
a  note  can  pledge  property  to  secure  an  accommodation  acceptor,  and  also 
to  protect  the  future  holder  of  the  note.  Britton  v.  Hai-vey,  47  La.  Ann.  259, 
16  South.  747. 

*T  Leonard  v.  Kebler's  Adm'r,  50  Ohio  St.  444,  34  N.  E.  659;  Merchants' 
Nat.  Bank  of  Savannah  v.  Demere,  92  Ga.  735,  19  S.  E.  38;  Clymer  v.  Patter- 
son, 52  N.  J.  Eq.  188,  27  Atl.  645.  Or  for  future  advances.  Merchants'  Nat. 
Bank  of  Whitehall  v.  Hall,  83  N.  Y.  338;  Stearns  v.  Marsh,  4  Denio  (N.  Y.) 
227;  Badlam  v.  Tucker,  1  Pick.  (Mass.)  389,  398;  Jewett  v.  Warren.  12  Mass. 
300;  Macomber  v.  Parker,  14  Pick.  (Mass.)  497;  Holbrook  v.  Baker.  5  Me.  309; 
Eichelberger  v.  Murdock,  10  Md.  373;  Wolf  v.  Wolf,  12  La.  Ann.  529;  Smith- 
urst  V.  Edmunds,  14  N.  J.  Eq.  408;  D'Wolf  v.  Harris,  4  Mason,  515,  ^'ed.  Cas. 
No.  4,221;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  386,  448. 

*8  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  380,  448;  Steams  v.  Marsh.  4  Denio 
(N.  Y.)  227;  Badlam  v.  Tucker,  1  Pick.  (Mass.)  389,  398;  Holbrook  v.  Baker. 
5  Me.  309;  D'Wolf  v.  Harris.  4  Mason,  515,  Fed.  Cas.  No.  4,221. 

*»  Mechanics'  Traders'  Bank  v.  Livingston,  6  Misc.  Rep.  81,  26  N.  Y.  Supp. 
25;  Jones  v.  Bank,  72  Hun,  344,  25  N.  Y.  Supp.  660. 

60  Shirras  v.  Caig,  7  Cranch,  34;  Hendricks  v.  Robinson,  2  Johns.  Ch,  (N.  Y.) 
283,  309;   Stevens  v.  Bell,  6  Mass.  339. 

61  Merchants'  Nat.  Bank  of  Whitehall  v.  Hall,  83  N.  Y.  338;  Norton  ▼ 
Plumb,  14  Conn.  512. 


112  BAILMENTS    FOR   MUTUAL    BENEFIT PLEDGE.  [Cb.   4 

ters  not  what  is  the  nature  of  the  debt  or  the  engagement  The 
contract  of  pledge  is  not  confined  to  an  engagement  for  the  payment 
of  money;  but  it  is  susceptible  of  being  applied  to  any  other  lawful 
contract  whatever. 

In  all  cases  the  pledge  is  understood  to  be  a  security  for  the 
whole  and  for  every  part  of  the  debt  or  engagement,  unless  it  is  oth- 
erwise stipulated  between  the  parties.  The  payment  or  discharge 
of  a  part,  therefore,  still  leaves  it  a  perfect  pledge  for  the  residue  of 
the  debt  or  engagement.**^  The  pledge  may,  however,  be  to  secure 
a  part,  only,  of  a  debt." 

When  new  agreements  are  made,  which  are  intended  by  the  par- 
ties, either  tacitly  or  expressly,  to  be  attached  to  the  pledge,  the 
pledgee  has  a  title  and  right  of  possession  coextensive  with  the  new 
engagements. ***  But  the  mere  existence  of  a  former  debt  due  to 
the  pledgee  does  not  authorize  him  to  detain  the  pledge  for  that 
debt,  when  it  has  been  put  into  his  hands  for  another  debt  or  con- 
tract, unless  there  is  some  just  presumption  that  such  was  the  inten- 
tion of  the  parties."*  **  The  like  rule  applies  to  a  subsequent  debt  or 
loan  contracted  by  the  pledgor;  for  in  such  a  case  the  new  debt  or 
loan  will  not  be  deemed  to  attach  to  the  pledge,  so  that  the  pledgee 
may  retain  the  same  therefor,"'  unless  the  new  loan  was  made  upon 

62  Baldwin  v.  Bradley,  69  111.  32. 

6  3  Fridley  v.  Bo  wen,  103  111.  633,  637. 

64  Demanday  v.  Metcalf,  Finch,  Free.  419. 

56  Jarvis  v.  Rogers,  15  Mass.  389;  Allen  v.  Megguire,  Id.  490;  Robinson  r. 
Frost,  14  Barb.  (N.  Y.)  536;  Neponset  Bank  v.  Leland,  5  Mete.  (Mass.)  359; 
James'  Appeal,  89  Pa.  St.  54;  Russell  v.  Hadduck,  8  111.  233,  238;  Baldwin 
V.  Bradley,  69  111.  32;  St.  John  v.  O'Connel,  7  Port.  (Ala.)  466;  Gilliat  v. 
Lynch,  2  Leigh  (Va.)  493;  Mahoney  v.  Caperton,  15  Cal.  314;  Bank  of  Metropo- 
lis v.  N«w  England  Bank,  1  How.  234;  Boughton  v.  U.  S.,  12  Ct.  CI.  330; 
Thompson  v.  Dominy,  14  Mees.  &  W.  403;  Vanderzee  v.  Willis,  3  Brown,  Ch. 
21;  Brandao  v.  Barnett,  3  C.  B.  519,  530;  In  re  Meadows,  28  Law  J.  Ch.  891; 
Walker  v.  Birch,  6  Term  R.  258;  Rushforth  v.  Hadfleld,  7  East,  224;  Green 
V.  Farmer,  4  Burrows,  2214;  Buckley  v.  Garrett,  60  Pa.  St.  333;  Pheller  v. 
Jewett,  166  Pa.  St.  456,  31  Atl.  204.  Where  a  judgment  is  given  as  collateral 
security  for  a  note  which  is  afterwards  paid,  a  parol  agreement  between  the 
creditor  and  the  agent  of  the  debtor  to  continue  such  judgment  as  security 
for  certain  other  notes  of  the  debtor  is  valid  against  subsequent  Judgment 
creditors  of  such  debtor  without  notice.  In  re  Mosser's  Estate,  161  Pa.  St. 
469,  29  Atl.  1. 

06  Midland  Co.  v.  Huchberger,  46  111.  App.  518;  Searight  v.  Bank  (Pa,  Sup.) 


§§    27-29]     ESTABLISHMENT    OF    UELATION TITLE    OF    PLEDGOR.  113 

the  credit  of  the  pledge."  If  the  debt  secured  bears  interest,  the 
pledge  secures  the  payment  of  such  interest.'^  And,  when  a  pledge 
is  made,  it  continues  effectual  until  the  debt  secured  is  paid  or  dis- 
charged, notwithstanding  the  evidence  of  it  is  changed  from  a  prom- 
issory note  to  a  judgment  of  a  court  of  record  thereon."" 

SAME— TITLE  OF  PLEDGOR. 

27.  The  pledgor  need   not  be  absolute  o-wner;    a  limited 

interest  is  sufiQ.cient.  But  a  mere  lien  holder  can- 
not make  a  pledge  (except  by  statute)  valid  against 
the  o-wner  (p.  113). 

28.  In    many  states,   by   statute,    factors    have    po-wrer    to 

pledge  goods  consigned  to  them  (p.  114). 

29.  One  given  the  indicia  of  title  by  the  owner  may  pledge 

the  goods  (p.  116). 

Pledgor  Need  not  he  Absolute  Owner. 

It  is  not  necessary  that  the  pledgor  be  the  absolute  owner  of  the 
thing  pledged.'"  He  may  have  only  a  limited  interest  therein,  such 
jis  a  life  interest,"^  or  that  of  a  pledgee,®^  though,  where  property 
is  pledged  by  one  having  such  a  limited  interest,  the  pledgee  ao- 
quires  no  right  to  sell  on  default,*^^  because  to  do  so  would  divest 
the  rights  of  the  ultimate  owner..  But  he  can  sell  whatever  interest 
the  pledgor  has.  The  purchaser  in  such  case  merely  gets  a  right 
to  hold  the  property  as  long  as  the  pledgor  could  have  held  it.** 

29  Atl.  783;  Baldwin  v.  Bradley,  69  111.  32;  Adams  v.  Sturges,  55  111.  468; 
GUliat  V.  Lynch,  2  Leigh  (Va.)  493. 

B7  Van  Blarcom  v.  Broadway  Bank,  9  Bosw.  (N.  Y.)  532;  Id.,  37  N.  Y.  B40; 
Smith  V.  Dennlson,  101  111.  531;  Buchanan  v.  International  Bank,  78  111.  500. 

68  Boardman  v.  Holmes,  124  Mass.  438;   Charles  v.  Coker,  2  S.  C.  122. 

B«  Fisher  v.  Fisher,  98  Mass.  303. 

•0  But  a  partner  cannot  pledge  partnership  property  as  security  for  bla 
private  debts.  Oliphant  v.  Markham,  79  Tex.  543.  A  joint  owner  In  posses- 
sion may  pledge  his  own  interest,  but  not  that  of  the  co-owner,  without  th« 
latter's  consent.     Frans  v.  Young,  24  Iowa,  876. 

•1  Hoare  v.  Parker,  2  Term  R.  376. 

62  See  post,  p.  134. 

•  8  Robertson  v.  Wilcox,  36  Conn.  428. 

•*  Jones,  Pledges,  §  60. 

liAW  BAILM. — 8 


114  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

However,  one  who  has  only  a  lien  on  personal  property  cannot 
make  a  valid  pledge  of  it.  If  he  attempts  to  do  so,  his  pledgee  can- 
not hold  it  against  the  owner,  even  for  the  amount  of  the  lien."' 
This  Is^  on  the  theory  that  a  lien  is  a  personal  right  to  retain  posses- 
sion,  and  cannot  be  assip^ned.  But  in  California  "*  and  the  Dako- 
tas  ®'^  it  is  provided  by  statute  that  a  lien  holder  may  pledge  property 
in  his  possession,  to  the  extent  of  his  lien. 

Factors.  C^^u^-v-^^^  A£^  A«.-»^^ 

Although  a  factor  or  broker  has  a  lien  on  his  principal's  goods  for 
advances  made,  yet  at  common  law  he  cannot  pledge  them.®^  When 
goods  are  so  attempted  to  be  pledged,  the  title  and  right  of  property 
of  the  owner  are  not  divested  by  his  own  act,  or  by  his  authority. 
The  factor  has  authority  to  sell,  and  a  sale  passes  a  good  title  from 
the  owner.  But  the  factor  has  no  authority  to  pledge  goods  con- 
signed to  him.  His  acts  attempting  to  do  so  are  void,  and  vest  no 
title  in  the  pledgee.®^ 

The  rights  of  the  principal  and  factor  depend  on  the  law  mer- 
chant, which  has  been  adopted  by  the  common  law.  .   By  this  law  a 

«B  McCombie  v.  Davies,  7  East,  5. 

««  Civ.  Code  Cal.  §  2i)!J0. 

«T  Civ.  Code  Dak.  §  1761. 

«8  Kennedy  v.  Strong,  14  Johns.  (N.  Y.)  127;  Rodriguez  v.  Hefferman,  5 
Johns.  Ch.  (N.  Y.)  417;  Newbold  v.  Wriglit,  4  Kawle  (Pa.)  195;  Kinder  v. 
Shaw,  2  Mass.  397;  Gray  v.  Agnew,  95  111.  815;  Kelly  v.  Smith,  1  Blatchf. 
290,  Fed.  Cas.  No.  7,675;  Van  Amringe  v.  Peabody,  1  Mason,  440,  Fed.  Cas. 
No.  16,825;  Warner  v.  Martin,  11  How.  208;  First  Nat.  Bank  of  Macon  v. 
Nelson,  38  Ga.  391;  Wriglit  v.  Solomon,  19  Cal.  64;  Merchants'  Nat.  Bank 
of  Memphis  v.  Trenholm,  12  Heisk,  (.Tenn.)  520;  McCreary  v.  Gaines,  55  Tex. 
485;  Paterson  v.  Tash,  2  Strange,  1178;  Daubigny  v.  Duval,  5  Term  R.  604; 
Newsom  v.  Thornton,  6  East,  17;  Graham  v.  Dyster,  2  Starkle,  21;  Martini 
V.  Coles,  1  Maule  &  S.  140;  Shipley  v.  Kymer,  Id.  484;  Solly  v.  Rathbone,  2 
Maule  &  S.  298;  Cockran  v.  Irlam,  Id.  301,  note;  Boyson  v.  Coles,  6  Maule 
&  S.  14;  Fielding  v.  Kymer,  2  Brod.  &  B.  639;  Queiroz  v,  Trueinan,  3  Barn. 
&  C.  342;  Bonito  v.  Mosquera,  2  Bosw.  (N,  Y.)  401.  But  cf.  Hutchinson  v. 
Bours,  6  Cal.  384;  Leet  v.  Wadsworth,  5  Cal.  404;  Wright  v.  Solomon,  19 
Cal.  64;  Miller  v.  Schneider,  19  La.  Ann.  300;  McCreary  v.  Gaines,  55  Tex, 
485;  First  Nat.  Bank  v.  Nelson,  38  Ga.  391. 

«9  Hoffman  v.  Noble,  6  Mete.  (Mass.)  68,  Bott  v.  McCoy,  20  Ala.  578.  The 
factor,  however,  cannot  disaffirm  the  pledge  on  the  ground  that  he  had  no  au- 
thority to  make  it.    Bott  v.  McCoy,  20  Ala.  578. 


§§    27-29]    ESTABLISHMENT    OF    REI.ATIOX TITrJC    OF    PLEIXiOlt.  115 

factor  is  but  the  attornoj  of  liis  principal,  and  Ik-  nnist  [lursuc  tho 
powers  delegated  to  liim.^°  The  party  receiving  such  a  pledge,  and 
advancing  his  money,  acquires  no  title,  as  against  the  ])rincipal. 
Nor  is  it  material  in  such  a  case  whether  the  pledgee  knew  that  he 
was  dealing  with  a  factor  or  not.  If  he  knew  the  fact,  he  was  bound 
to  know  that  by  law  the  factor  had  no  authority  to  pledge  the  goods 
of  his  principal.  If  he  did  not  know  that  the  person  with  whom  he 
was  dealing  was  a  factor,  still  his  want  of  knowledge  of  this  fact 
could  not  extend  the  authority  of  the  factor.  As  such  an  act  is  not 
within  the  ordinary  powers  of  a  factor,  it  is  clear  that  it  cannot 
work  a  divestiture  of  the  title  of  the  principal ;  and  he  may  pursue 
the  goods  in  the  hands  of  the  pledgee,  or  may  bring  trover  against 
both  the  pledgee  and  factor,  or  either  of  them,  at  his  election.''^ 

But  a  factor  may  deliver  the  possession  of  goods  on  which  he  has 
a  lien,  to  a  third  person,  with  notice  of  the  lien,  and  with  a  declara- 
tion that  the  transfer  is  to  such  person  as  agent  of  the  factor,  and 
for  his  benefit  This  is  a  continuance,  in  effect,  of  the  factor's  pos- 
session.^* 

Same — Statutory  Poiver  to  Pledge. 

In  a  number  of  states,  however,  the  rules  of  the  common  law 
as  to  factors  have  been  changed  by  statute.^ ^  These  enactments 
make  it  possible  for  persons  dealing  with  factors  to  take  pledges  of 
goods  held  by  the  latter,  and,  by  so  doing,  acquire  rights  superior  to 

70  Kinder  v.  Shaw,  2  Mass.  '6i)H;  McCreary  v.  Gaines,  55  Tex.  485. 

Ti  Bott  v.  McCoy,  20  Ala.  578;  Kinder  v.  Sliaw,  2  Mass.  397;  McCreary  v. 
Gaines,  55  Tex.  485;  Phillips  v.  Huth,  6  Mees.  &  W.  572,  596;  Martini  v. 
C5oles,  1  Maule  &  S.  140;  Baring  v.  Corrie,  2  Barn.  &  Aid.  137;  McCombie 
T.  Davies,  6  East,  538.  But  see  Hutchinson  v.  Bours,  6  Cal.  384;  Story,  Ag. 
§437. 

»«  Urquhart  v.  M'lver,  4  Johns.  (N.  Y.)  103;  Laussatt  v.  Lippincott,  6  Serg. 
&  R.  (Pa.)  440;  Bowie  v.  Napier,  1  McCord  (S.  C.)  1;  Blair  v.  Childs,  10 
Heisk.  (Tenn.)  199;  First  Nat.  Bank  of  Louisville  v.  Boyce,  78  Ky.  42.  Contra, 
Merchants'  Nat.  Bank  of  Memphis  v.  Treuholm,  12  Heisk.  (Tenn.)  520. 

78  1  stim.  Am.  St.  Law,  §§  4380-4385.  New  York,  2  Rev.  St.  1875,  p.  11G8, 
§§  1,  5;  3  Rev.  St  1882,  p.  2257.  Ohio,  1  Rev.  St.  1880,  §§  3214,  3218.  Massa- 
chusetts, Gen.  St.  18G0,  c.  54;  Pub.  St.  1882,  c.  71.  Pennsylvania,  Bright 
&  Purd.  Dig.  1873,  p.  664.  Wisconsin,  Rev.  St.  1878,  pp.  854,  855,  §§  3345-3347. 
Maryland,  Rev.  Code  1878,  pp.  291,  292,  294,  §§  3,  5,  6,  14.  Rhode  Island, 
Gen.  St  1872,  p.  261,  c.  123;   Pub.  St.  1882,  c.  136.   Louisiana,  Act  1874,  No.  66. 


116  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

those  of  the  ovnier,  who,  by  placing  the  property  in  the  factor's 
hands,  clothes  him  with  apparent  ownership.  If  the  pledgee  takes 
the  goods  knowing  that  the  pledgor  holds  them  as  a  factor,  then 
the  pledge  is  subject  to  the  rights  of  the  owner.  The  statutes  are 
designed  merely  for  the  protection  of  bona  fide  pledgees.''*  Nor,  on 
the  other  hand,  is  the  factor  given  any  right  to  pledge  his  principal's 
goods  without  the  latter's  consent.  The  owner  may  maintain  an 
action  against  the  factor  for  the  tort.'^^  The  factor's  acts,  as  they 
are  called,  apply  in  most  of  the  states  only  to  factors  to  whom  the 
goods  are  consigned  for  sale,  and  not  to  mere  consignees.''*  The 
owner  may,  in  all  cases,  recover  the  goods  pledged,  by  paying  the 
amount  which  the  pledgee  has  advanced. 

Indicia  of  Title. 

On  the  principle  of  the  factor's  acts,  it  is  held  that  an  owner  of 
goods  who  clothes  another  with  the  indicia  of  ownership  cannot 
take  them  from  one  to  whom  they  have  been  pledged  in  reliance 
thereon,  and  without  notice  of  the  owner's  rights.'''  Thus,  in  a  con- 
ditional sale,  where  the  vendee  is  in  possession,  and  pledges  the 

T4  St.  Louis  Nat  Bank  v.  Ross,  9  Mo.  App.  399;  Evans  v.  Trueman,  1 
Moody  &  R.  10. 

T  8  StoUenwerck  v.  Thacher,  115  Mass.  224. 

T6  Jennings  v.  MerriU,  20  Wend.  (N.  Y.)  9;  Stevens  v.  Wilson,  6  Hill  (N.  Y.) 
512;  Id.,  3  Denio  (N.  Y.)  472;  Cartwriglit  v.  Wilmerding,  24  N.  Y.  521;  First 
Nat.  Bank  of  Toledo  v.  Shaw,  61  N.  Y.  283;  KInsey  v.  Leggett,  71  N.  Y.  387; 
Howland  v.  Woodruff,  60  N.  Y.  72;  Chicago  Taylor  Printing  Press  Co.  v. 
Lowell,  60  Cal.  454;  Nickerson  v.  Darrow,  5  Alien  (Mass.)  419;  StoUenwerck 
V.  Thacher,  115  Mass.  224;  Cole  v.  Northwestern  Bank,  L.  R.  10  C.  P.  354; 
Fuentes  v.  Montis,  L.  R.  3  C.  P.  3C8;  Id.,  L.  R.  4  O.  P.  93;  Johnson  v.  Credit 
Lyonnais,  2  C.  P.  Div.  224;  Pickering  v.  Busk,  15  East,  38;  Boyson  v.  Coles, 
6  Maule  &  S.  14;   Dyer  v.  Pearson,  3  Barn.  &  C.  38. 

T7  Calais  Steamboat  Co.  v.  Scudder,  2  Black  (U.  S.)  372;  Babcock  v.  Lawson, 
4  Q.  B.  Dlv.  394.  Where  an  agent  fraudulently  misappropriates  negotiable 
collaterals  deposited  with  him  on  a  loan  of  the  principal's  money,  the  borrower 
offering  to  pay  the  loan  at  maturity,  the  principal  is  liable  to  him  for  the  value 
of  the  collaterals  at  that  time.  Reynolds  v.  Witte,  13  S.  C.  5.  A  clerk  or 
salesman  has  no  power  to  pawn  his  employer's  assets  as  security  for  his  own 
debts.  Ollphant  v.  Markham,  79  Tex.  543,  15  S.  W.  5G9.  But,  for  cases  where 
it  wa8  held  that  the  pledgor  did  not  have  sufficient  indicia  of  ownership,  see 
Agnew  V.  Johnson,  22  Pa.  St.  471;  Gallaher  v.  Cohen,  1  Browne  (Pa.)  43; 
Branson  y.  Heckler,  22  Kan.  424;  Cox  v.  McCuire,  26  111.  App.  315. 


v§    L'7-29]    ESTABLISHMENT    OF    RELATION TITLE    OF    PLEDGOR.  117 

property  to  one  who  has  no  notice  of  the  vendor's  rights,  the  pledgee 
can  hold  the  property  as  against  the  vendor.''*  So,  an  administra- 
tor may  make  a  valid  pledge  of  personal  property  belonging  to  the 
estate,  because  the  legal  title  is  in  him.^®  But,  if  the  pledgee  knows 
that  the  administrator  is  not  acting  lawfully,  he  takes  the  pledge 
affected  with-  a  trust  in  favor  of  the  estate.  A  pledge  of  property 
held  by  an  administrator,  a-s  such,  to  secure  a  private  debt,  jvouMjDe 
notice  to  the  pledgee  of  a  violatiop  of  dnty.^Q 

If  a  man  obtains  goods  under  color  of  a  contract  intended  to  trans- 
fer the  property  in  the  goods  to  him,  and  then  pledges  them,  the 
pledgee  will  have  a  lien  upon  the  goods  to  the  amount  of  his  ad- 
vance. As,  for  example,  if  a  man  purchases  and  oblains  possession 
of  a  specific  chattel,  and  pays  for  it  by  a  fictitious  bill  of  exchange, 
or  by  a  check  on  a  banker  where  he  has  no  funds,  and  then  pledges 
the  article  with  a  party  who  advances  money  upon  it  without  any 
knowledge  of  the  fraud,  the  pledgee  will  have  a  lien  for  his  ad- 
vances against  the  vendor  who  has  been  defrauded.  But  if  the 
article  has  been  stolen,  and  then  pledged,  the  pledgee  will  have  no 
lien  upon  it,  as  against  the  owner.®^  The  reason  of  the  distinction 
between  these  two  classes  of  cases  rests  on  the  principle  that  no 
one  can  be  deprived  of  his  property  without  his  consent.  Where  a 
sale  has  been  induced  by  fraud,  the  vendor  has  consented  that  the 
title  shall  pass,  and  though,  as  between  the  immediate  parties,  the 
contract  may  be  avoided  by  reason  of  the  fraud,  yet  it  cannot  be 
against  a  bona  fide  pledgee.  On  the  other  hand,  in  the  case  of 
stolen  goods  there  is  no  consent  that  the  title  shall  pass,  and  a 

T8  Michigan  Cent  R.  Co.  v.  Phillips,  60  111.  190;  Western  Union  R.  Co.  v. 
Wagner,  65  111.  197;  Ohio  &  M.  Ry.  Co.  v.  Kerr,  49  111.  458;  Jennings  v. 
Gage,  18  111.  610;   Brundage  v.  Camp,  21  Hi.  329. 

7  8  Pickens  v.  Yarborough's  Adm'r,  26  Ala.  417;  Carter  v.  Manufacturers' 
Nat.  Bank  of  Lewistown,  71  Me.  448;  Leitch  v.  Wells,  48  N.  Y.  585;  Hutchins 
V.  State  Bank,  12  Mete.  (Mass.)  421;  Bayard  v.  Farmers'  &  Mechanics'  Bank. 
62  Pa.  St  232;  Woods'  Appeal,  92  Pa.  St.  379;  Petrle  v.  Clark,  11  Serg.  & 
R.  (Pa.)  877;  Russell  v.  Plaice,  18  Beav.  21;  Vane  v.  Rlgden,  L.  It  5  Ch.  A  pp. 
663. 

80  Wilson  V.  Doster,  7  Ired.  Eq.  (N.  C.)  231;  Gray  v.  Armlstead,  6  Ired.  Eq. 
(N.  C.)  74;  Tyrrell  v.  Morris,  1  Dev.  &  B,  Eq.  (N.  C.)  559. 

81  Duel  V.  Cudlipp,  1  Hilt  (N.  Y.)  166.  See  Hoffman  v.  Carrow,  22  WendL 
(N.  Y.)  285. 


118  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

pledgee  acquires  no  better  right  to  the  goods  than  the  pledgor 
has." 

SAME— WHAT  MAY  BE  PLEDGED. 

30.  Any  personal  property,  corporeal  or  incorporeal,  may 
be  pledged,  except  (by  statute): 
EXCEPTIONS— (a)  Pay  of  soldiers  (p.  118). 
(b)  Pensions  given  by  the  United  States  (p.  118). 

Any  legal  or  equitable  interest  whatever  in  any  personal  property 
may  be  pledged,  provided  the  interest  can  be  put,  by  actual  delivery 
or  by  written  transfer,  into  the  hands  or  within  the  power  of  the 
pledgee,  so  as  to  be  made  available  to  him  for  the  satisfaction  of  the 
debt.  Goods  at  sea  may  be  passed  in  pledge  by  a  transfer  of  the 
muniments  of  title,  as  by  a  written  assignment  of  the  bill  of  lading. 
This  is  equivalent  to  actual  delivery  of  possession,  because  it  is  a 
delivery  of  the  means  of  obtaining  possession.*  And  debts  and 
choses  in  action  are  capable,  by  means  of  a  written  assignment,  of 
being  conveyed  in  pledge,^^ 

By  the  Roman  law,  certain  things  were  prohibited  from  being  put 
in  pawn, — such  as  the  necessary  apparel  and  furniture,  beds,  utensils, 
and  tools  of  the  debtor;  his  plows,  and  other  utensils  for  tillage; 
things  esteemed  sacred  in  the  Roman  law;  the  benevolence  or  pen- 
sion or  bounty  of  a  monarch;  and  the  pay  and  emoluments  of  officers 
and  soldiers.**  But  the  common  law  allows  a  debtor  to  pledge  any 
of  his  property,  whether  it  consist  of  necessaries,  or  other  things. 
However,  no  assignment  of  pay  by  a  noncommissioned  officer  or  pri- 
vate in  the  United  States  army,  pre\ious  to  his  discharge,  is  valid.*" 
And  no  pledge  of  any  right,  claim,  or  interest  in  any  pension  granted 

«2  Arendale  v.  Morgan,  5  Sneed  (Tenn.)  703;  Mowrey  v.  Walsh,  8  Cow.  (N. 
Y.)  238;  Caldwell  v.  Bartlett,  3  Duer  (N.  Y.)  341;  Jarvis  v.  Rogers,  13  Mass. 
105;  Wood  V.  Yeatman,  15  B.  Mon.  (Ky.)  270;  Parker  v.  Patrick,  5  Term  R. 
175;  White  v.  Garden,  10  C.  B.  919. 

*  Story,  Bailm,  §  297. 

8  8  Wilson  V.  Little,  2  N.  Y.  443.  But  a  chose  In  action  growing  out  of  a 
personal  tort  is  not  assignable,  and  therefore  cannot  be  pledged.  Pindell  v. 
Grooms,  18  B.  Mon.  (Ky.)  501. 

8*  Story,  Bailm.  §  293. 

«B  Rev.  St.  U.  S.  1878,  §  1291. 


§    30]  ESTABLISHMENT  OF  RELATION — WHAT  MAY  BE  PLEDGED.  11 'J 

by  the  United  States  is  of  any  validity.'"  National  banks  were  i»ro- 
hibited  by  the  currency  act  of  June  3,  18G4,  from  niakin;;  loaus  on 
their  own  stock  deposited  as  security,  unless  necessary  to  prevent 
loss  on  a  debt  previously  contracted  in  good  faith.^^ 

The  owner  of  chattels  exempted  from  execution  is  not  divested  of 
the  right  of  disposing  of  the  property  himself  by  pledge  in  security 
for  the  payment  of  his  debts.  In  such  case  the  owner  clearly  waives 
the  benefit  of  the  exemption,  so  far  as  the  incumbrance  extends  or  is 
operative.®* 

Future  Property. 

The  general  rule  is  that  property  not  in  existence  or  not  yet  ac- 
quired cannot  be  pledged. ^^  The  attempt  to  pledge  such  property 
creates  only  contract  rights,  though  the  pledge  may  take  effect 
when  the  property  is  acquired  or  comes  into  existence,  provided  the 
rights  of  third  persons  have  not  intervened.""  But  property  which 
is  potentially  in  existence,  such  as  crops  in  the  ground,"^  and  wool  to 
be  raised  from  sheep  which  are  owned,  may  be  pledged.  Thus, 
a  man  may  pledge  all  the  wool  that  he  may  take  from  liis  flocks  in 
a  certain  year,  but  not  all  the  wool  that  shall  grow  upon  sheep  that 
he  may  thereafter  buy.®* 

Incorporeal  Property. 

Incorporeal  property  may  also  be  the  subject  of  a  pledge,  and  in 
fact  the  more  important  transactions  in  pledge  have  to  do  with  this 
class  of  property.  By  "incorporeal  property"  is  meant  a  debt  or 
property  evidenced  by  negotiable  instruments,**  such  as  bills  of  ex- 

88  Rev.  St.  U.  S.  §  4745. 

87  Bank  v.  Lanier,  11  Wall.  3G9. 

8  8  Frost  V.  Shaw,  3  Ohio  St.  270;   .Ton^s  v.  Scott,  10  Kan.  33. 

88  Gittiugs  V.  Nelson,  8G  111.  51)1;  Ownes  v.  Kinsey,  7  Jones  (N.  C.)  245; 
Smithurst  v.  Edmunds,  14  N.  J.  Eq.  408.  For  a  pledge  of  an  interest  in  a 
partnership  not  yet  in  existence,  see  Collins'  Appeal,  107  Pa,  St.  090. 

80  Macomber  v.  Parker,  14  Pick.  (Mass.)  497;  Goodeuow  v.  Dunn,  21  Me. 
86;  Smith  v.  Atkins,  18  Vt.  461;  Ayers  v.  South  Australian  Banking  Co.,  L.  U. 
3  P.  C.  548. 

91  Smith  V.  Atkins,  18  Vt.  461.  But  an  attempt  to  pledge  crops  not  yet 
planted  is  ineffectual  against  a  landlord's  lien.  Gittings  v.  Nelson,  86  111. 
591. 

82  Smithurst  v.  Edmunds,  14  N.  J.  Eq.  408. 

88  Wilson  V.  Little,  2  N.  Y.  443,  447;    McLean  v.  Walker,  10  Johns.  (N.  T.) 


120  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

change  and  promissory  notes;®*  nonnegotiable  instruments;*^  and 
quasi  negotiable  instruments,  such  as  corporate  stock,"  bills  of 
lading,®^  and  warehouse  receipts.®^  In  Texas  it  is  held  that  a  land 
certificate  issued  by  the  state  may  be  pledged,®®  but  the  rule  is  oth- 
erwise in  Wisconsin.^®" 

471;  White  V.  Phelps,  14  Minn.  27;  Appleton  v.  Donaldson,  3  Pa.  St.  381; 
Loomis  V.  Stave,  72  111.  623;  Sanders  v.  Davis,  13  B.  Mon.  (Ky.)  433;  Morris 
Canal  &  Banking  Co.  v.  Fisher,  9  N.  J.  Eq.  667;  Fennell  v.  McGowan,  58  Miss. 
261;  Williamson  v,  Culpepper,  16  Ala,  211;  State  Bank  v.  Gaiennie,  21  La. 
Ann.  555. 

8*  A  man  may  pledge  his  own  note.  Green  v.  Sinker,  Davis  &  Co.,  135  Ind. 
434,  35  N.  E.  262.  A  promissory  note  of  a  third  person,  deposited  by  a 
debtor  with  his  creditor  as  collateral  security  for  a  debt,  is  a  pledge  in  which 
the  pawnee  has  merely  a  special  property,  the  general  ownership  remaining 
in  the  pawnor.  Garlick  v.  James,  12  Johns.  146.  Coupon  bonds  payable  to 
the  bearer  may  be  pledged  by  the  party  issuing  them,  because  they  are 
securities  usually  sold  in  the  stock  market,  and  understood  by  the  parties 
to  be  designed  for  that  use,  and  not  because  the  party's  ordinary  bond  or 
mortgage,  deposited  as  a  collateral,  could  be  so  regarded.  Morris  Canal  & 
Banking  Co.  v.  Fisher,  9  N.  J.  Eq.  667. 

•0  Cowdrey  v.  Vandenburgh,  101  U,  S.  572.  And  see  Blebinger  v.  Con- 
tinental Bank,  99  U.  S.  143;  Wickham  v.  Morehouse,  16  Fed.  324;  Judson  v. 
Coccoran,  17  How.  (U.  S.)  612;  Ingraham  v.  Disborough,  47  N.  Y.  421;  Chick- 
ering  v.  Fullerton,  90  111.  520;  Irish  v.  Sharp,  89  111.  26;  Storey  v.  Dutton,  46 
Mich.  539,  9  N.  W.  844.  In  Dewey  v.  Bowman,  8  Cal.  145,  an  assignment 
of  a  lease  was  held  a  pledge  rather  than  a  mortgage. 

8  8  Hasbrouck  v.  Vandervoort,  4  Sandf.  (N.  Y.)  74;  Wilson  v.  Little,  2  N.  Y. 
443;  Fisher  v.  Brown,  104  Mass.  259;  Rozet  v.  McClellan,  48  111.  345;  Heath 
V.  Silverthorn  Lead  Mining  &  Smelting  Co.,  39  Wis.  147;  Conyngham's  Appeal, 
57  Pa.  St.  474.  It  may  be  pledged  by  the  corporation  itself.  Brewster  v.  Hart- 
ley, 37  Cal.  15.  So  insurance  policies  may  be  pledged.  Wells  v.  Archer,  10 
Serg.  &  R.  (Pa.)  412;  Soule  v.  Union  Bank,  45  Barb.  (N.  Y.)  Ill;  Bruce  v. 
Garden,  L.  R.  5  Ch.  32;  Edwards  v.  Martin,  L,  R.  1  Eq.  121;  Latham  v. 
Chartered  Bank  of  India,  L.  R.  17  Eq.  205. 

9  7  First  Nat.  Bank  of  Cincinnati  v.  Kelly,  57  N.  Y.  34;  Petitt  v.  First  Nat 
Bank  of  Memphis,  4  Bush  (Ky.)  334;  Mason  v.  Lickbarrow,  1  H,  BI,  357. 

»8  Gibson  v.  Stevens,  8  How.  384;   Yenni  v.  McNamee,  45  N.  Y.  614,  620. 
»9  Stone  V.  Brown,  54  Tex.  330. 

100  But  see  Smith  v.  Mariner,  5  Wis.  551;  Whitney  v.  State  Bank,  7  Wis. 
320;    Mowry  t.  Wood,  12  Wis.  413. 


iA/Jk    r\^-^y^ 


^s 


§§    31-32]  ESTABLISHME^T   OF   RELATION DELIVERY.  121 


SAME— DELIVERY. 

31.  Delivery  is  essential  to  the  establishment  of  a  pledge. 
The  delivery  may  be: 

(a)  Actual  (p.  121). 

(b)  Constructive  or  symbolical  (p.  122). 

82.  Delivery  with  intention  to  create  a  pledge  Is  sufficient 
to  establish  a  pledge  of  any  kind  of  property. 
EXCEPTION— Except  corporate  stock  (p.  126). 

Adtial  Delivery. 

The  method  of  creating  a  pledge  is  by  delivering  the  property  to 
be  pledged  into  the  hands  of  the  pledgee.  This  delivery  is  a  neces- 
sary element  in  the  creation  of  a  pledge.  Without  it  the  pledge 
does  not  exist.^**^  Between  the  immediate  parties,  the  pledgor  and 
pledgee,  it  is  not  material  whether  the  pledge  has  been  completed 
by  delivery,  oronly  a  contract  to  make  a  pledo;e  exists.^"''  But, 
as  against  other  persons,  such  as  purchasers  and  creditors,  who  sub- 
sequently acquire  rights  in  the  property  in  good  faith,  the  pledgee 
cannot  claim  the  existenne  of  a  pledge,  if  there  has  been  ^m  dpM^- 
ery."'     To  constitute  a  valid  pledge  of  part  of  a  larger  quantity  of 


101  Fletcher  v.  Howard,  2  Aikens  (Vt.)  115;  Succession  of  Lanaux,  46  La. 
Ann.  1036,  15  South.  708;  Cortelyou  v.  Lansing,  2  Caines,  Cas.  (N.  Y.)  200; 
Barrow  v.  Paxton,  5  Johns.  (N.  Y.)  259,  and  note;  Brown  v.  Bement,  8  Johns. 
(N.  Y.)  97;  Ceas  v.  Bramley,  18  Hun  (N.  Y.)  187;  Campbell  v.  Parker,  9  Bosw. 
(N.  Y.)  322,  329;  Haskins  v.  KeUy,  1  Rob.  (N.  Y.)  160,  172;  Milliman  v.  Neher, 
20  Barb.  (N.  Y.)  37,  40;  Muller  v.  Pondir,  6  Lans.  (N.  Y.)  472,  480;  Nevan  v. 
Roup,  8  Iowa,  207;  Gleason  v.  Drew,  9  Me.  79,  82;  Walcott  v.  Keith,  22  N.  H. 
196;  Propst  v.  Roseman,  4  Jones  (N.  C.)  IHO;  Corbett  v.  Underwood,  83  111. 
824;  Caisey  v.  Cavaroc,  96  U.  S.  467.  Plaintiff  leased  a  machine  to  defendant 
for  certain  work,  under  an  agreement  that  plaintiff  should  receive  one-fourth 
of  the  profits  of  the  work,  and  pay  one-fourth  of  the  losses.  Aftem-ards  It 
was  agreed  that  defendant  should  have  a  lien  on  the  machine  as  security  for 
plaintiff's  agreement  to  pay  one-fourth  of  the  losses.  It  was  then  delivered 
to  defendant.  Held,  that  there  was  a  pledge  of  the  machine  to  defendant 
Clark  V.  Costello,  79  Hun,  588,  29  N.  Y.  Supp.  937. 

102  Keiser  v.  Topping,  72  III.  226;  Tuttle  v.  Robinson,  78  111.  332;  City  Fire 
Ins.  Co.  V.  Olmsted,  33  Conn.  476. 

108  Collins'  Appeal,  107  Pa,  St  590;  Casey  v.  Cavaroc,  96  U.  S.  467;  Casey 
T.  National  Bank,  Id.  492. 


122  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

goods,  the  part  to  be  pledged  must  be  separated  from  the  rest,  and 
delivered.^"*  An  effective  delivery,  however,  may  be  made  by  an 
agent  of  the  pledgor,^""  and  to  an  agent  of  the  pledgee.^"®  Even  a 
clerk  of  the  pledgor  may  hold  the  property  for  the  pledgee.  In  such 
case  the  clerk  has  a  special  possession,  distinct  from  his  duties  as 
clerk;  and,  to  constitute  such  special  possession,  it  is  not  neces- 
sary that  the  goods  should  be  removed  from  the  premises  of  the  for- 
mer owner.  It  is  sufficient  that  they  are  so  f ai'^in_±lie  xuatodv-t)f 
the  special  bailee  that  he  can  at  all  times  have  the  legal  control  of 
them,  and  give  notice  of  the  lien  to  any  purchaser  or  attaching  ^red- 
itor,  and  remove  the  goods,  if  such  removal  should  be  necessary  for 
the  safety  of  the  pledgee. ^ ° ^ 

Constructive  or  Symbolical  Delivery. 

However,  an  actual  delivery  is  not  in  all  cases  necessary  for  the 
creation  of  a  pledge.  Thus,  when  property  is  in  the  possession  of  a 
third  person,  an  actual  delivery  to  the  pledgee  will  not  be  re- 
quired.^"* For,  the  actual  custody  and  possession  of  the  goods  be- 
ing in  the  hands  of  the  third  person,  a  constructive  delivery  is  suf- 
ficient to  pass  the  property.  An  order  by  the  pledgor  upon  the 
keeper,  or,  if  the  contract  of  pledge  be  in  writing,  proper  and  sat- 
isfactory notice  thereof  by  the  pledgee  to  the  holder,  constitutes 
such  constructive  delivery.  Where  goods  are  lying  in  a  warehouse, 
although  subject  to  a  lien  for  keeping,  notice  to  the  warehouse  keep- 
er, where  all  the  other  requisites  of  a  pledge  are  proved,  is  equiva- 
lent to  a  delivery.  After  such  notice  the  keeper  ceases  to  be  the 
agent  of  the  pledgor,  and  becomes  the  agent  of  the  pledgee;  and 
thus  the  goods  are  placed  under  the  effective  control  of  the  pledgee, 
as  much  as  they  would  be  by  an  actual  delivery.^ °^     The  pledgee 

104  Collins  V.  Buck,  63  INIe.  459. 

10  0  Cartwright  v.  Wllmerding,  24  N.  Y.  521. 

loa  City  Banls  of  New  Haven  v.  Perkins,  29  N.  Y.  .554;  Johnson  "v.  Smith, 
11  Humph.  (Tenn.)  896;  McCready  v.  Haslock,  3  Tenn.  Ch.  13;  Brown  v. 
Warren,  43  N.  H.  430;  Tibbetts  v.  Flanders,  18  N.  H.  284;  Boynton  v.  Pay- 
row,  67  Me.  587;    Weens  v.  Delta  Moss  Co.,  33  La.  Ann.  973. 

107  Summer  v.  Hamlet,  12  Pick.  (Mass.)  76;  Combs  v.  Tucliolt,  24  Minn.  423. 

108  Whitaker  v.  Sumner,  20  Pick.  (Mass.)  399;  Tuxworth  v.  Moore,  9  Pick. 
(Mass.)  347,  349. 

108  Whitaker  v.  Sumner,  20  Pick.  (Mass.)  399,  403;    Hathaway  v.  Haynes, 


§§    31-32]  ESTABLISHMENT    OF    RELATION DELIVERY.  123 

may  himself  be  in  possession  at  the  beginning  of  the  pledge, as  where 
goods  already  pledged  are,  by  agreement  of  the  parties,  made  se- 
curity for  a  further  loan.""  Or  possession  may  be  held  by  the 
pledgee  jointly  with  others.  Actual  delivery  is  not  necessary  in 
such  cases.  It  can  make  no  difference,  so  long  as  the  property  is  not 
in  the  hands  of  the  pledgor,  whether  it  be  in  the  hands  of  the  pledgee, 
or  of  a  third  person  who  has  known  and  assented  to  the  pledge,  and 
who  thus  holds  the  property  for  the  pledgee.  Nor  can  it  be  mate- 
rial that  the  property  be  held  by  one  alone,  or  by  two  jointly,  pro- 
vided they  assent  to  hold  the  property  for  the  pledgee;  and  they 
could  as  well  and  as  properly  thus  jointly  hold  the  property  for  one  of 
their  own  number,  who  was  the  pledgee,  as  for  a  stranger.^^*  Thus, 
there  may  be  a  pledge  of  property  to  a  trustee,  to  pay  his  own  debt 
first,  and  then  the  debts  of  several  other  creditors.  This  is  a  good 
pledge  for  all  such  creditors,  and  gives  them  all  a  lien  upon  the 
property."^ 

So  there  may  be  a  symbolical  delivery  which  will  be  sufficient 
to  create  a  pledge;  as,  where  goods  are  ponderous,  and  iucapahle  of 
being  handed  over  from  one  to  another,  there  need  not  be  an  actual 
delivery," 2  but  it  may  be  done  by  what  is  tantamount,  such  as  the 

124  Mass.  311;  First  Nat.  Bank  of  Cincinnati  v.  Kelly,  57  N.  Y.  34;  Cart- 
wright  V.  Wilmerding,  24  N.  Y.  521;  Michigan  Cent.  R.  Co.  v.  Phillips,  GO  111. 
190;  Western  Union  R.  Co.  v.  Wagner,  05  111.  197;  Burton  v.  Curyea.  40  111. 
325;  Newcomb  v.  Cabell,  10  Bush  (Ky.)  4G0;  Whitney  v.  Tibbits,  17  Wis. 
3G9;  Dows  v.  National  Exch.  Bank,  91  U.  S.  618;  First  Nat.  Bank  of  Cincin- 
nati V.  Bates,  1  Fed.  702;  Freiburg  v.  Dreyfus,  135  U.  S.  478,  10  Sup.  Ct.  710; 
Harris  v.  Bradley,  2  Dill.  (U.  S.)  284,  Fed.  Cas.  No.  0,1  Ui. 

110  Van  Blarcom  v.  Broadway  Bank,  37  N.  Y.  540;  Brown  v.  Warren,  4.1  N. 
n.  430. 

111  Macomber  v.  Parker,  14  Pick.  (Mass.)  497;  Danforth  v.  Denny.  25  N.  H. 
155. 

112  Brown  v.  Warren,  43  N.  H.  430.  A  pledgee,  who  already  holds  property 
to  secure  his  debt,  may,  by  consent  of  the  parties,  become  the  pledgee  for 
another  creditor  after  the  expiration  of  the  contract  made  to  secure  his 
debt.     Herber  v.  Thompson,  47  La.  Ann.  800,  17  South.  318. 

118  Jewett  V.  Warren.  12  Mass.  3(X);  Whitney  v.  Tibbits,  17  Wis.  3G9;  Xovan 
y.  Roup,  8  Iowa,  207;  Badlam  v.  Tucker,  1  Pick.  (Mass.)  389;  Summer  v.  Ham- 
let, 12  Pick.  (Mass.)  76;  Atkinson  v.  Maling,  2  Term  R.  4G2;  Barber  v.  Meyer- 
stein,  L.  R.  4  H.  Li.  317. 


124  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

delivery  of  a  key  of  a  warehouse  in  which  goods  are  lodged,***  or  by 
the  delivery  of  other  indicia  of  property,^ ^^ 

Agreement  to  Deliver. 

A  mere  agreement  to  deliver  property  in  pledf?;e  does  got  afPect 
the  rights  of  third  persons  subsequently  attaching.  An  agree- 
ment to  pledge  gives  no  privilege.^'"  Equity  will  not  regai'd  a 
thing  as  done  which  has  not  been  done,  when  it  would  iniure 
third  parties,  who  have  sustained  detriment  and  acquired  rights 
by  what  has  been  done.*'*  No  rights  can  be  acquired  as  a  pledgee, 
under  such  an  agreement,  until  the  delivery  is  actually  made. 
The  contract  may  give  the  intended  pledgee  a  right  to  enforce  de- 
livery,  but  this  right  cannot  be  exercised  to  the  detriment  nf  fhir^^ 
persons.*''  An  agreement  to  deliver  propertv  in  pledge  mav  be  per- 
formed  by  a  delivery  at  a  subsequent  tini£,  and  thus  validate  the 
'Ipledge.  provided,_as  in  other  cases^  thj^re  are  no  intervening  rights 
which  would  be  affected.*" 

Incorporeal  Property. 

A  pledge  of  incorporeal  property  is  made  by  delivery,  just  as  in 
other  cases, — that  is,  the  delivery  of  the  evidence  or  symbol  creates  a 
pledge  of  the  property, — and  such  a  delivery  is  necessary.*'*  Though 
a  pledge  of  this  kind  of  property  is  generally  made  by  an  assignment 
in  writing,  such  an  assignment  is  not  absolutely  necessary,  except 
in  the  case  of  stocks,  mentioned  later.  Thus,  a  negotiable  instru- 
ment may  be  pledged  by  a  simple  delivery,  without  any  indorsement, 

114  Wilkes  V.  Ferris,  5  Johns.  (N.  Y.)  335;  Chaplin  v.  Rogers,  1  East,  192, 
195;   Ryall  v.  Rolle,  1  Atk.  164,  170. 

116  Chaplin  v.  Rogers,  1  East,  192,  195;  Hodgson  v.  Le  Bret,  1  Camp.  233, 
236. 

120  Casey  v.  National  Bank,  96  U.  S.  492,  493;  Gale  v.  Ward,  14  Mass.  352, 
356;  Tucker  v.  Bufflngton,  15  Mass.  477,  480;  Collins  v.  Buck,  63  Me.  459,  461; 
Caffln  v.  Kirwan,  7  La.  Ann.  221;  Nisbit  v.  Macon  Bank  &  Trust  Co.,  12  Fed. 
686. 

121  Nisbit  V.  Macoa  Bank  &  Trust  Co.,  12  Fed.  686,  690;  Casey  v.  Cavaroc, 
96  U.  S.  467,  491. 

122  City  Fire  Ins.  Co.  v.  Olmsted,  33  Conn.  476. 

123  Parshall  v.  Eggert,  54  N.  Y.  18. 

124  Jones,  Pledges,  §  80;  Casey  v.  Cavaroc,  96  U.  S.  467;  Casey  v.  National 
Bank,  Id.  492;  Casey  v,  Schuchardt,  Id.  494. 


§§    31-32]  ESTABLISHMENT    OF    RELATION DELIVERY.  125 

even  though  it  be  payable  "to  order."  ^*"  And  it  has  long  been  set- 
tled that  if  a  nonnegotiable  note  is  transferred  by  delivery,  bona  fide 
and  for  a  valuable  consideration,  this  is  a  valid  pledge,  which  the 
courts  of  law  will  regard  and  protect,  although  the  pledgee  cannot 
maintain  an  action  at  law  thereon  in  his  own  name.  And  the  same 
principle  applies  to  other  choses  in  action.^^®  An  equitable  interest 
in  a  judgment  may  be  pledged  by  the  delivery  of  the  execution 
thereon  to  the  pledgee.^ ^'^  Where  there  is  a  pledge  of  a  nonnego- 
tiable chose  in  action,  no  notice  to  the  debtor  is  necessary  to  the 
validity  of  the  piedge,^^* 

The  rule  in  England  would  seem  to  be  that,  as  between  successive 
purchasers  of  a  chose  in  action,  he  will  have  the  preference  who  first 
gives  notice  to  the  debtor,  even  if  he  be  a  subsequent  purchaser.^" 
Such,  however,  has  not  been  the  rule  adopted  in  this  country,  where  it 
is  held  that  the  assignment  of  a  chose  in  action  is  complete  upon  the 
mutual  assent  of  the  assignor  and  assignee,  and  does  not  gain  addi- 
tional validity,  as  against  third  persons,  by  notice  to  the  debtor.' '° 

Applying  the  rules  of  the  preceding  paragraphs  to  some  special 
cases,  we  find  that  a  delivery  of  a  savings-bank  book,  with  the  inten- 
tion of  transferring  the  title  to  the  money  deposited,  transfers  the 
equitable  title  to  the  deposit,''^  and  the  book  may  be  delivered  with 
the  intention  that  it  should  be  held  as  collateral  security  in  the  same 
manner.'"  So  the  delivery  of  a  note  and  mortgage  as  security  for  a 
debt,  without  an  assignment  in  writing,  is  to  be  considered  as  an 
equitable  assignment,  which  is  entitled  to  protection  in  a  court  of 

128  Van  Riper  v.  Baldwin,  19  Hun  (N.  Y.)  344;  Morris  v.  Preston.  93  111. 
215;  Tucker  v.  New  Hampshire  Savings  Bank  In  Concord,  58  N.  H.  83. 

ia«  Jones  v.  Witter,  13  Mass.  304,  Ml;  Grover  v.  Grover,  24  Pick.  (Mass.) 
261,  263;  Norton  v.  PIscataqua  Fire  &  Marine  Ins.  Co.,  Ill  Mass.  ."32,  535, 
Kingman  v.  Perkins,  105  Mass.  Ill;  Dix  v.  Cobb,  4  Mass.  5U8;  Williams  v. 
Ingersoll,  89  N.  Y.  508,  518;   Stout  v.  Yaeger  Milling  Co.,  13  Fed.  8U2. 

127  Grain  v.  Paine,  4  Cush.  (Mass.)  4S3,  485;  Dunn  v.  Snell,  15  Mass.  481; 
Thayer  v.  Daniels,  113  Mass.  129. 

128  Jones,  Pledges,  §  136;  Thayer  v.  Daniels,  113  Mass.  129. 

128  Dearie  v.  Hall,  3  Russ.  3;  Loveridge  v.  Cooper,  3  Russ.  32;  Meux  ▼. 
Bell,  1  Hare,  73;  Foster  v.  Blackstone,  1  Mylne  &  K,  298. 

180  Thayer  v.  Daniels,  113  Mass.  129. 

181  Pierce  v.  Boston  Five-Cents  Savings  Bank,  129  Mass.  425. 
"2  Taft  V.  Bowker,  132  Mass.  277. 


126  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

jg^^.183  ^jj^  where  the  directors  of  a  corporation  placed  the  com- 
pany's policies  of  insurance  in  the  hands  of  two  of  its  directors,  with- 
out any  formal  assignment,  to  secure  loans  made  and  to  be  made  by 
such  directors  and  others  to  the  corporation,  it  was  held  that  there 
was  a  sufficient  delivery  to  sustain  the  pledge. ^^* 

Corporate  Stock. 

What  is  necessary  to  constitute  a  valid  pledge  of  stock  in  an  in- 
corporated company  has  been  the  subject  of  much  discussion  and 
learning,  with  resulting  conflicting  decisions ;  but,  although  formerly 
there  was  doubt  whether  it  could  be  the  subject  of  a  pledge  at  all, 
there  is  no  doubt,  in  the  absence  of  statutory  provisions,  that,  to 
pledge  stock,  some  written  transfer  or  contract  is  necessary,  as 
against  third  parties.  Mere  handing  over  the  certificate  is  not  sufS- 
cient.^*"  There  must  be  a  transfer  on  the  books  of  the  company,  or  a 
power  of  attorney  authorizing  a  transfer,^ °°  or  some  assignment  or 
contract  in  writing  by  which  the  holder  may  assert  title  and  compel 
a  transfer  when  desired. ^^^  The  pledge  is  in  these  cases  effected  by 
a  transfer  of  the  certificates,  rather  than  of  the  stock  itself.  It  is 
usually  provided  by  statute,  or  by  a  by-law  of  the  corporation,  that 
no  transfer  of  stock  is  valid  unless  made  on  the  books  of  the  com- 
pany. The  entry'  of  the  transaction  on  the  books,  where  stock  is 
sold  or  pledged,  is  required,  not  for  the  transfer  of  the  title,  but  for 
the  protection  of  the  parties  and  others  dealing  with  the  company, 
and  to  enable  it  to  know  who  are  its  stockholders,  entitled  to  vote  at 

i««  Grain  v.  Paine,  4  Cush.  (Mass.)  483. 

18*  Stout  V.  Yaeger  Milling  Co.,  13  Fed.  802. 

188  Wagner  v.  Marple  (Tex.  Civ.  App.)  31  S.  W.    691. 

188  A  pledge  of  stock  by  a  transfer  in  blank  on  the  back  of  the  certificate, 
which  is  pinned  to  the  note  secured,  is  valid  in  respect  to  form.  McClintock 
V.  Central  Bank,  120  Mo.  127,  24  S.  W.  1052. 

187  Nisbit  v.  Bank  &  Trust  Co.,  12  Fed.  68(5.  And  see  article  on  Law  of 
Collateral  Security,  by  Leonard  A.  Jones,  in  14  Am.  Law  Rev.  (Feb.,  1880) 
97,  128.  A  broker  carrying  stocks  upon  margins  is  a  pledgee.  The  purchaser 
Is  regarded  as  pledgor  of  the  slock  which  the  broker  holds  as  a  pledge  for 
the  advances  made  by  him  in  purchasing  the  stock.  Baker  v.  Drake,  66  N. 
Y.  518;  Stentom  v.  Jerome,  54  N.  Y.  480;  Vaupell  v.  Woodward,  2  Sandf. 
Ch.  (N.  Y.)  143;  McNeil  v.  Tenth  Nat.  Bank  of  New  York,  55  Barb.  (N.  Y.)  59; 
Thompson  v.  Toland,  48  Cal.  99;  Worthington  v.  Tormey,  34  Md.  182;  Hatch 
V.  Douglas,  48  Conn.  116. 


§§    .31-r{2]  ESTABLISHMENT    OF    UELATION UKLIVKKV.  127 

their  meetings  and  receive  dividends  when  declared.  It  is  necessary 
to  protect  the  seller  against  subsequent  liability  as  a  stockholder, 
and  perhaps,  also,  to  protect  the  pledgee  against  proceedings  of  the 
seller's  creditors.  Purchasers  and  creditors,  in  the  absence  of  other 
knowledge,  are  only  bound  to  look  to  the  books  of  registry  of  the 
company.^"  But,  as  between  the  parties  to  a  pledge,  it  is  enough 
that  the  certificate  is  delivered  with  authority  to  the  pledgee,  or  any 
one  he  may  name,  to  transfer  it  on  the  books  of  the  company."'  If 
a  subsequent  transfer  of  the  certificate  be  refused  by  the  company, 
it  can  be  compelled,  at  the  instance  of  either  of  them.^*° 

BiU  of  Lading. 

A  bill  of  lading  may  be  pledged  by  a  mere  delivery  without  indorse- 
ment^*^ It  is  well  settled  that  where  a  party  consigns  goods  to 
another,  and  thereupon  draws  upon  the  consignee  for  funds,  accom- 
panying the  draft  with  the  delivery  of  the  bill  of  lading  or  shiijping 
receipt,  as  collateral  security  for  its  payment,  the  acceptance  and 
payment,  by  the  consignee,  of  the  draft,  accompanicni  with  the  bill  of 
lading  or  shipping  receipt,  vests  in  him  a  special  property  in  the 
goods.  The  bill  of  lading,  in  such  case,  is  a  symbol  of  the  goods, 
and  the  delivery  thereof,  with  the  intention  to  transfer  the  property 
in  the  goods,  is  a  symbolical  delivery  of  the  goods. 

Warehouse  Receipts. 

The  delivery  of  a  warehouse  receipt  is  a  sufiQcient  pledge  of  it.'** 
This  is  true,  although  the  receipt  is  not  made  out  "to  bearer."    The 

188  Bank  v.  Lanier,  11  Wall.  8G9. 

139  Bank  ofUtica  v.  Smalley,  2  Cow.  (N.  Y.)  770;  Gilbert  v.  Manchester  Iron 
Manuf'g  Co.,  11  Wend.  (N.  Y.)  627;  Commercial  Bank  of  Buffalo  v.  Kortrigbt, 
22  Wend.  (N.  Y.)  362;  Johnston  v.  Lalliu,  103  U.  S.  SOO;  Coruick  v.  Richards, 
3  Lea  (Teun.)  1. 

1*0  Sargent  v.  Franklin  Ins.  Co.,  S  Pick.  (Mass.)  IK);  Webster  v.  Upton,  01  U. 
S.  65;   Commercial  Bank  of  Buffalo  v.  Kortrigbt,  22  Wend.  (xN.  Y.)  362. 

1*1  Gibson  v.  Stevens,  8  How.  (U.  S.)  383;  First  Nat.  Bank  of  Cairo  v.  Croclcer. 
Ill  Mass.  163,  167;  First  Nat.  Bank  of  Green  Bay  v.  Dearborn,  115  Mass.  219; 
Michigan  Cent.  R.  Co.  v.  Phillips,  60  111.  100;  Haille  v.  Smith,  Bos.  &  P. 
563;  Holbrook  v.  Wight,  24  Wend.  (N.  Y.)  160,  173;  Grosvenor  v.  Phillips, 
2  Hill  (N.  Y.)  147;  Bank  of  Rochester  v.  Joues.  4  N.  Y.  407;  Gibson  v.  Stevous, 
8  How.  383;  Allen  v.  Williams,  12  Pick.  (Mass.)  207;  Peters  v.  Elliott,  78  IlL 
321. 

1*2  Rice  V.  Cutler,  17  Wis.  351. 


128  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

delivery  of  the  receipt  is  as  effectual  as  the  delivery  of  the  goods 
represented,  and  it  makes  no  difference  that  the  receipt  is  not  in- 
dorsed by  the  pledgor.^*^  A  debtor  cannot  pledge  property  of  which 
he  retains  possession  by  giving  receipts  for  it,  and  agreeing  to  hold  it, 
as  a  warehouseman,  for  the  pledgee.^**  By  statute,  however,  in  a 
few  states,  a  pledgor  may  be  warehouse  keeper  for  his  pledgee.^*' 

RIGHTS  AND  LIABILITIES— OF  PLEDGOR. 

33.  Unless    varied    by    a    special    contract,  the    principal 
rights  and  liabilities  of  a  pledgor  are  as  follows: 

(a)  He  impliedly  -warrants  his  title  (p.  128). 

(b)  Hig,  interest  is  assignable  (p.  129). 

(c)  By  statute,  in  many  states,  his   interest  is  subject  to 

judicial  sale,  but  not  at  common  law  (p.  130). 

(d)  He  can  sue  third  persons  for  injuries  to  the  pledge 

(p.  131). 

(e)  He   has    a   right  to   redeem,   which  continues   until 

foreclosed  (p.  132). 

The  rights  and  liabilities  of  the  parties  to  a  contract  of  pledge  may 
be  varied,  as  in  other  bailments,  by  a  special  contract  containing  such 
terms  as  they  see  lit  to  insert^*®  Tn  the  absence  of  such  agreements, 
the  law  annexes  certain  conditions  to  a  pledge,  which  govern  the 
relations  of  the  pledgor  and  pledgee  to  each  other  and  to  third  per- 
sons. 

Warranty  of  Title  by  Pledgor. 

A  pledgor,  by  delivering  property  in  pledge,  impliedly  warrants  his 
title  thereto  as  that  of  an  absolute  owner,^*^     He  is  accordingly  lia- 

1*8  Gibson  v.  Stevens,  8  How.  383;  Wilkes  v.  Ferris,  5  Jolins.  (N.  Y.)  335; 
Hoor  V.  Barker,  8  Cal.  609;   St.  Louis  Nat.  Bank  v.  Ross,  9  Mo.  App.  399. 

1*4  Parshall  v.  Eggart,  52  Barb.  (N.  Y.)  3G7;  Id.,  54  N.  Y.18;  Thorne  v. 
First  Nat.  Bank,  37  Otiio  St.  254;  Geddes  v.  Bennett,  6  La.  Ann.  516. 

1*6  Nebraska,  Laws  1879,  p.  73,  §  1;  Comp.  St.  1881,  c.  92,  §  13.  Kentucky, 
Act  March  6,  18G9. 

i*«  St.  Losky  V.  Davidson,  6  Cal.  643;  Lee  v.  Baldwin,  10  Ga.  208;  Law- 
rence V.  McCalmont,  2  How.  425,  451;  Drake  v.  White,  117  Mass.  10.  See 
ante,  p.  10. 

1*7  Mairs  V,  Taylor,  40  Pa.  St.  446;  Goldstein  v.  Hort,  30  Cal.  372. 


§    33]  RIGHTS    AND    LIABILITIES    OF    PLEDGOR.  129 

ble  to  the  pledgee  for  the  amount  of  any  liens  or  incumbrances  on  the 
property  which  the  pledgee  is  obliged  to  discharge  to  perfect  his 
title.^*'  The  pledgor  may,  however,  avoid  such  liability,  where  he 
is  less  than  absolute  owner,  by  giving  the  pledgee  notice  of  the  quali- 
fied nature  of  his  title. 

One  assuming  to  ow^n  personal  propertyj  and^  pledging  JL.  is 
estopped  from  afterwards  asserting  that  he  did  not  own  it  wlien  1iq 
pledged  it;  and  a  subsequent  acquisition  of  title  by  the  pledgor,  as 
between  the  parties  to  the  contract,  inures  to  the  benefit  of  the 
pledgee,  without  any  new  delivery  or  ratification  of  the  pledge.^*" 

Aasigmnent  by  Pledgor. 

The  pledgor  of  a  chattel  still  retains  his  property  In  it,  though 
qualified  by  the  right  existing  in  the  pawnee,  and  has  a  right  to  sell 
it,  and  by  the  sale  to  transfer  that  property  to  the  buyer;  ^'^°  and 
if  the  pawnee,  on  the  buyer's  tendering  him  the  amount  due,  refuses 
to  deliver  it  up,  the  buyer  may  maintain  trover  to  recover  it.^°^  The 
pledgor's  assignee  takes  the  property  subject  to  the  rights  of  the 
pledgee,^"^  and  may  even  become  liable  for  the  payment  of  the  debt 
secured/ ''^  After  the  pledgee  has  received  notice  of  an  assignment 
of  the  pledgor's  interest,  he  holds  for  the  assignee,  and  cannot  law- 
fully surrender  the  pledge  to  the  pledgor,  even  on  payment  of  the 

148  Cass  V.  Higeubotam,  27  Huu  (N.  Y.)  40G.   . 

1*9  Goldstein  v.  Hort,  30  Cal.  372. 

iBo  Fletcher  v.  Howard,  2  Aiken  (Vt.)  115;  Bush  v.  Lyon,  9  Cow.  (N.  Y.)  62; 
Whitaker  v.  Sumner,  20  Pick.  (Mass.)  399;  Tuxworth  v.  Moore,  9  Pick.  (Mass.) 
847;  Pettyplace  v.  Dutch,  13  Pick.  (Mass.)  388;  Cooper  v.  Ray,  47  111.  53;  Rat- 
cliff  V.  Vance,  2  Const.  (S.  C.)  239. 

161  Franklin  v.  Neate,  13  Mees.  &  W.  480;  Ratcliff  v.  Vance,  2  Const.  (S.  C.) 
239.  Refusal  to  deliver  pledged  stock  to  the  pledgor's  assignee  is  not  lustl- 
fied  by  Its  attachment  under  a  writ  against  ru^I}  pledLrof.  subsequent  to  such 
assignment.  Loughborough  v.  McNevin,  74  Cal.  250,  14  Pac.  309,  and  15  Pac. 
77S. 

162  Taggart  v.  Packard,  39  Vt.  628,  631, 

IBS  Thus,  one  who  purchased  from  the  general  owner  goods  pledged  for  ad- 
vances, with  knowledge  or  notice  of  the  lien  of  the  pledgee,  and  who  re- 
ceives the  goods  from  the  latter  with  notice  of  his  claim  of  a  lien  thereon  for 
a  specific  amount,  takes  them  with  the  obligation  to  pay  the  Hen,  and.  In  an 
action  therefor,  cannot  offset  a  claim  against  the  pledgor.  Carriugton  ▼. 
Ward,  71  N.  Y.  360. 

LAW  BAILM. — 9 


130  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

amount  secured.^"*  If,  on  default,  tlie  pledgee  sells  the  property, 
he  holds  the  surplus  proceeds,  after  the  satisfaction  of  the  debt,  for 
the  assignee.^ ""^ 

Sale  of  Pledgor^s  Interest  on  Judicial  Process, 

At  common  law,  the  interest  remaining  in  a  pledgor  of  property 
IS  not  subject  to  attachment  ^^^  or  garnishment,^ ''^  nor  to  seizure 
and  sale  on  execution.^"*  This  rule  has  been  changed  by  statute 
in  many  states.  In  some  this  result  is  brought  about  by  express 
enactments^''®  which  provide  that  the  pledgor's  interest  shall  be 
liable  to  some  or  all  the  forms  of  judicial  sale,  or  the  terms  of  the 
statutes  are  so  broad  that  they  include  the  interest  of  a  pledgor  by 
implication.^ °°     But  these  statutes  do  not  permit  the  creditor  to 

10*  Duell  V.  Cudlipp.  1  Hilt.  (N.  Y.)  166. 

155  Van  Blarcom  v.  Broadway  Bauk,  37  N.  Y.  540. 

156  Badlam  v.  Tucker,  1  Pick.  (Mass.)  389;  Jennings  v.  Mcllroy,  46  Ark. 
236;  Tannahill  v.  Tuttle,  3  Micli.  104;  Wilkes  v.  Ferris,  5  Johns.  (N.  Y.)  336; 
Marsh  v.  Lawrence,  4  Cow.  (N.  Y.)  461;  Stief  v.  Hart,  1  N.  Y.  20,  28;  Pom- 
eroy  v.  Smith,  17  Pick.  (Mass.)  85;  Hunt  v.  Holton,  13  Pick.  (Mass.)  216; 
Srodes  v.  Caven,  3  Watts  (Pa.)  258.  Where  a  sheriff  violates  the  law,  in 
seizing  goods  pledged,  under  an  attachment  against  the  pledgor,  in  an  action 
against  him  by  the  pledgee  he  will  be  liable  to  the  latter  for  the  entire  value 
of  the  goods.    Treadwell  v.  Davis,  34  Cal.  601. 

157  Hall  V.  Page,  4  Ga.  428;  Winslow  v.  Fletcher,  53  Conn.  390,  4  Atl.  2.50; 
Roby  V.  Labuzan,  21  Ala.  60;  Kergin  v.  Dawson,  1  Oilman  (111.)  86;  Patter- 
son V.  Harland,  12  Ark.  158. 

158  Soule  V.  White,  14  Me.  436;  Thompson  v.  Stevens.  10  Me.  27;  Briggs  v. 
Walker,  21  N.  H.  72;  Dowler  v.  Cushwa,  27  Md.  354,  366;  Badlam  v.  Tucker, 

1  Pick.  (Mass.)  389;   Treadwell  v.  Davis,  34  Cal.  601. 

169  Colorado,  Sess.  Laws  1879,  p.  82,  §§  17.  18.  Georgia,  Code  1873,  §  2144. 
Indiana,  2  Rev.  St.  1876,  p.  207,  §  436;  1  Rev.  St.  1894,  §  734.  Maine,  Rev.  St. 
1871,  c.  81,  §§  41,  44.  Massachusetts,  Pub.  St.  1882,  c.  161,  §§  74-78.  Michigan, 

2  Comp.  Laws,  1871,  §  6097.  Minnesota,  Gen.  St.  1878,  c.  66,  §  309;  Gen.  St. 
180i,  §  5458.  New  Hampshire,  Gen.  Laws  1878,  c.  224,  §§  17,  18;  Id., 
c.  230,  §§  3-5.  New  York,  4  Rev.  St.  1892  (Code  Civ.  Proc.)  §  1412.  -  Texas.  Rev. 
St.  1879,  p.  336,  art.  2296.  Vermont,  Laws  1880,  No.  33,  §  1;  Rev.  Laws  1880. 
§§  1180-1185.    Wisconsin,  Rev.  St.  1878,  c.  130.  §  2988. 

leo  Petty  V.  Overall,  42  Ala.  145;  Code  Civ.  Proc.  §§  545,  688;  Treadwell  v. 
Davis,  34  Cal.  001;  Louisiana,  Civ.  Code,  art.  3157;  Aug6  v.  Variol,  31  La. 
Ann.  865;  Homer  v.  Dennis,  34  La.  Ann.  389;  Mechanics'  Building  &  Loan 
Ass'n  of  New  Brunswick  v.  Conover,  14  N,  J.  Eq.  219;  Reichenbach  v.  Me- 
Kean,  95  Pa.  St  432;    Srodes  v.  Caven,  3  Watts  (Pa.)  258;    Baugh  v.  Kirk- 


§    33]  RIGHTS    AND    LIABILITIKS    OF    PLEDGOR.  181 

divest  the  interest  of  the  pledgee.  For  he  has  a  special  property 
in  the  pledge,  and  is  not  bound  to  deliver  it  up  until  his  incumbrance 
Is  discharged.  And  a  creditor  cannot,  in  this  respect,  have  greater 
rights  than  the  pledgor  himself. ^"^ 

Action  by  Pledgor  against  Third  Persons. 

As  to  the  pledgor's  right  to  sue  third  persons  for  injury  to  the 
pledged  property,  Mr.  Schouler  ^^^  says:  "The  extent  of  the  pledg- 
or's right  to  sue  strangers  for  wrongfully  taking  or  injuring  the 
pledge  has  not  been  fully  determined;  but  while  it  may  be  theoret- 
ically true  that  either  the  pai'ty  having  the  special  property,  or  the 
general  owner,  may  recover  full  damages  against  an  intermeddler, 
courts  obviously  incline,  in  practice,  to  prefer  the  pledgee,  that  the 
pledgor,  whose  principal  debt  remains  unpaid,  or  principal  engage- 
ment unfulfilled,  may  not  oust  him  of  his  security."  An  assignee 
of  the  pledgor  stands  in  the  same  position  as  the  pledgor  himself, 
and  can  sue  third  persons  for  injuries  to  the  pledged  property,  if  the 
pledgor  could. ^•'^  But  no  action  can  be  maintained  by  an  assignee 
of  a  pledgor  for  a  conversion  prior  to  such  assignment,  when  the 
assignment  under  which  he  claims  purports  to  transfer  the  property 
only,  and  not  the  right  of  action.^®*  And,  when  the  transfer  or  as- 
signment is  made  to  the  plaintiff  after  the  property  has  passed  out 
of  the  pledgee's  possession,  a  demand  of  it  by  the  assignee  from  the 

Patrick,  54  Pa.  St.  84;  First  Nat.  Bank  of  Memphis  v.  Pettit,  9  Helsk.  (Tenn.) 
447;  .National  Bank  of  Pulaski  v.  Winston,  5  Baxt.  (Tenn.)  GS5.  A  purchaser 
of  stock  at  execution  sale,  under  an  attachment  against  the  original  pledgor, 
acquires  it  subject  to  the  pledge.  McClintock  v.  Central  Bank,  120  Mo.  127, 
24  S.  W.  1052.  Where  stock  pledged  as  collateral  is  levied  on  and  sold  under 
process,  the  purchaser  cannot  be  deprived  of  his  rights  under  the  levy  by 
any  arrangement  between  the  pledgor  and  pledgee  thereafter  made.     Id. 

161  Briggs  V.  Walker,  21  N.  H.  72,  77.  Where  the  sheriff  levies  an  attach- 
ment on,  and  sells,  personal  property  pledged  to  a  third  person  to  secure  a 
debt  which  equals  the  value  of  such  property,  the  pledgee  is  entitled  to  re- 
cover of  the  sheriff  and  the  attachment  creditors  the  value  of  such  property, 
less  prior  liens  thereon,  and  is  not  limited  to  the  amount  It  sold  for,  less  such 
liens.    Grabfelder  v.  Lockett  (Tex.  Civ.  App.)  2G  S.  W.  1G8. 

182  Bailm.  204. 

ifl3  Duprg  V.  Fall,  10  Cal.  430;  Kent  v.  Westbrook,  1  Ves.  Sr.  278;  FrankUn 
V.  Neate,  13  Mees.  &  W.  481. 

184  McKee  v.  Judd,  12  N.  Y.  622. 


132  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

pledgee,  and  a  refusal  on  his  part  to  give  it  up,  because  he  had  actu- 
ally parted  with  its  possession  to  the  person  from  whom  he  received 
it,  does  not  constitute  a  conversion.^*' 

Pledgor^ 8  Eight  to  Redeem. 

The  pledgor  has  a  right  to  redeem  the  pledged  property  by  pay- 
ment of  the  debt,^®'  or  performance  of  the  engagement  secured. 
This  right  continues  until  it  is  foreclosed  by  a  sale  in  one  of  the 
methods  to  be  subsequently  discussed.^®^ 

Where  the  pledgee  remains  in  possession  of  the  pledge,  the  statute 
of  limitations  does  not  ordinarily  begin  to  run  against  the  pledgor 
until  tender  of  the  debt  for  which  the  pledge  was  given,  and  a 
refusal  by  the  pledgee  to  restore  the  pledge  upon  demand  by  the 
pledgor,  for  until  then  he  has  no  cause  of  action.^**  And  mere 
delay  on  the  part  of  the  pledgor  to  claim  a  redemption  of  the 
pledge,  though  for  the  period  prescribed  by  the  statute  of  limita- 
tions as  a  bar  to  an  action  on  the  debt  for  which  the  pledge  was 
held,  will  not  suffice  to  cut  off  the  right  of  the  pledgor  to  redeem,^** 
unless  the  case  is  included  within  the  terms  of  the  statute  of  limita- 

180  DueU  V.  Cudllpp,  1  Hilt.  (N.  Y.)  166;  Id.,  52  N.  Y.  18. 

i«8  Roberts  v.  Sykes,  30  Barb.  (N.  Y.)  172.  When  no  time  for  redemption  is 
fixed,  the  pledgor  may  redeem  at  any  time.  Cortelyou  v.  Lansing,  2  Caines, 
Gas.  (N.  Y.)  200,  204.  In  an  action  in  equity  to  redeem  a  pledge,  payment  of 
the  amount  for  which  the  pledge  was  given  should  be  directed  before  the  re- 
turn of  the  pledge  is  ordered.  Smith  v.  Anderson  (Tex.  Oiv.  App.)  27  S.  W. 
775.  And  see,  further,  as  to  redemption  in  equity,  Bartlett  v.  Johnson,  9  Al- 
len (Mass.)  530;  Conyngham's  Appeal,  57  Pa.  St.  474;  Brown  v.  Runals,  14 
Wis.  755;  Chapman's  Adm'x  v.  Turner,  1  Call  (Va.)  280,  288;  Flowers  v. 
Sproule,  2  A.  K.  Marsh.  (Ky.)  54;  Merrill  v.  Houghton,  51  N.  H.  61;  White 
Mountain  R.  Co.  v.  Bay  State  Iron  Co.,  50  N,  H.  57;  Hasbrouck  v.  Vander- 
voort,  4  Sandf.  (N.  Y.)  74;  Jones  v.  Smith,  2  Ves.  Jr.  372. 

167  Post,  p.  170. 

168  Whelan's  Ex'r  v.  Kinsley's  Adm'r,  26  Ohio  St.  131;  Jones  v.  Thurmond's 
Heirs,  5  Tex.  318;  Cross  v.  Eureka  L.  &  Y.  Canal  Co.,  73  Cal.  302,  14  Pac. 
885. 

189  Whelan's  Ex'r  v.  Kinsley's  Adm'r,  26  Ohio  St.  131;  Hancock  v.  Frank- 
lin Ins.  Co.,  114  Mass.  155;  Moses  v.  St.  Paul,  67  Ala.  168;  Kemp  v.  West- 
brook,  1  Ves.  Sr.  278.  Where  an  article  pledged  Is  a  specific  chattel,  there  is 
an  ample  remedy  at  law,  by  replevin,  if  the  pledgee  retains  the  possession, 
or  by  trover  or  assumpsit  in  case  he  has  parted  with  it.  Bryson  v.  Rayner,  25 
Md.  424. 


84]  RIGHTS   AND   LIABILITIES   OF  PLEDGEE  BEFORE   DEFADiyT.  183 


tions.^^<*  On  the  other  hand,  the  fact  that  the  debt  secured  is  bairgd 
does  not  entitle  the  pledgor  to  recover  the  pledge  without  paying 
the  de)3t.  for  the  obligation  to  pay  still  continues,  though  the  remedy 
is  barred/ ^^ 

A  clause  inserted  in  the  original  contract,  providing  that  if  the 
terms  of  the  contract  are  not  strictly  fulfilled  at  the  time  and  in 
the  mode  prescribed,  the  pledge  shall  be  irredeemable,  is  void,  upon 
the  ground  of  public  policy,  as  tending  to  the  oppression  of  debt- 
ors.^ ^'  The  Roman  law  treated  a  similar  stipulation  (called  in 
that  law  "lex  commissoria")  in  the  same  manner,  holding  it  to  be  a 
mere  nullity.  However,  the  Roman  law  allowed  the  parties  to 
agree  that  upon  default  in  payment  the  creditor  might  take  the 
pledge  at  a  stipulated  price,  provided  it  was  its  reasonable  value, 
and  the  transaction  was  bona  fide.^^'  -  ' 

SAME— OF  PLEDGEE  BEFORE  DEFAULT.   f/L-4^  ^ 

34.  The  principal  rights  and  liabilities  of  a  pledgee,  before 
default  of  the  pledgor,  are  as  foUo-ws: 

(a)  His  interest  is  assignable  (p.  134). 

(b)  He  acquires  the  title  which  the  pledgor  has,  and  no 

greater  (p.  135;. 
EXCEPTION— But  he  holds  free  from  equities: 

(1)  When  he  takes  negotiable  securities  without  no- 

tice (p.  135). 

(2)  When  the  pledgor  has  been  clothed  by  the  owner 

with  the  indicia  of  ownership  (p.  135). 

(c)  He  acquires  a  special  property,  including  a  right  to 

possession  of  the  pledge,  and  to  maintain  suits  for 
injuries  to  it  (p.  150). 

(d)  He  has  no  right  to  use  the  pledge  (p.  151). 

»To  Roberts  v.  Sykes,  30  Barb.  (N.  Y.)  173. 

iTi  Jones  V.  Merchants'  Bank  of  Albany,  6  Rob.  (N.  Y.)  162;  In  re  Oakley, 
2  Edw.  Ch.  (N.  Y.)  478. 

172  Vickers  v.  Battershall,  84  Hun,  496.  32  N.  Y.  Supp.  814;  Lucketts  y. 
Townsend,  8  Tex.  119.  But  the  pledgor's  right  to  redeem  may  be  released  by 
a  subsequent  contract.    Beatty  v.  Sylvester,  8  Nev.  228. 

178  story,  Ballm.  §  345. 


184  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

(e)  He  can  hold  the  profits  and  increase  of  the  pledge, 

but  must  account  therefor  (p.  152). 

(f)  He  may  charge  the  pledgor  with  expenses  incurred 

about  the  pledge  (p.  154). 

(g)  He  must  use   ordinary  care  and  diligence  (p.  155). 
(h)  He  must,  on  redemption  by  the  pledgor,  redeliver  the 

identical  property  pledged,  except  in  case  of  certifi- 
cates of  stock  (p.  158). 

Pledgee's  Interest  Assignable. 

The  interest  which  a  pledgee  acquires  is  transferable.  He  may 
assign  all  his  interest  in  the  pledge/^*  or  he  may  assign  it  condi- 
tionally, to  secure  payment  of  his  own  debt;  that  is,  he  may  sub- 
pledge  it,^^°  or  he  may  deliver  it  to  a  bailee  to  hold  for  him.^'"  The 
transfer  of  the  pledge  in  any  one  of  these  ways  would  be  a  legal 
disposition  of  it,  authorized  by  the  nature  of  the  pledgee's  interest.^ ^' 
But  a  purchaser  or  assignee  acquires  only  the  rights  of  the  pledgee,^^* 
except  in  some  special  cases,  to  be  noticed  hereafter.* 

i74jarvls  V.  Rogers,  15  Mass.  389,  408;  Whitaker  v.  Sumner,  20  Pick. 
(Mass.)  399;  Bush  v.  Lyon,  9  Cow.  (N.  Y.)  62;  Ferguson  v.  Union  Furnace  Co., 
0  Wend.  (N.  Y.)  345;  Thompson  v.  Patrick,  4  Watts  (Pa.)  414;  Ashton's  Ap- 
peal, 73  Pa.  St.  153;  Goss  v.  Emerson,  23  N.  H.  38;  Bailey  v.  Colby,  34  N.  H. 
29;  Warner  v.  Martin,  11  How.  209;  Calkins  v.  Lockwood,  17  Conn.  154;  Bel- 
den  V.  Perkins,  78  111.  449;  Bradley  v.  Parks,  83  III.  169.  The  consent  of  the 
pledgor  to  the  assignment  is  not  necessary,  Curtis  v.  Leavitt,  15  N.  Y.  9.  A 
pledgee  of  negotiable  instruments  ma.y  assign  them.  Chapman  v.  Brooks, 
81  N.  Y.  75;  Duncomb  v.  New  York,  H.  &  N.  R.  Co.,  84  N.  Y.  190;  Id.,  88 
N.  Y.  1;  Baldwin  v.  Ely,  9  How.  580,  599;  Merchants'  Bank  v.  State  Bank, 
10  Wall.  604. 

IT 5  Lewis  V.  Mott,  36  N.  Y.  395;  Jarvis  v.  Rogers,  15  Mass.  889;  National 
Bank  of  Pulaski  v.  Winston,  5  Baxt.  (Tenn.)  685;  McComble  v.  Davies,  7 
East,  5,  7.  One  to  whom  securities  have  been  pledged  to  secure  the  payment 
of  a  note  may,  on  negotiating  the  note,  transfer  the  securities,  without  being 
liable  to  a  suit  for  conversion  by  the  pledgor.  Waddle  v.  Owen,  48  Neb.  489, 
61  N.  W.  731. 

17  8  Ingersoll  v.  Van  Bokkelin,  7  Cow.  (N.  Y.)  670. 

ITT  Goss  V.  Emerson,  23  N.  H.  38. 

ITS  Norton  v.  Baxter,  41  Minn.  146,  42  N.  W.  865;  Luckett  v.  Townsend,  8 
Tex.  119,  132. 

•  See  post,  pp.  143,  144. 


§    34]  RIGHTS   AND   LIABILITIES   OF   PLEDGEE  BEFORE  DEFAULT.  135 

Title  Acquired  by  Pledgee. 

TMien  a  valid  pledge  of  corporeal  property  is  created,  the  pledgee 
acquires  rights  which  the  pledgor  and  those  in  privity  with  him  can- 
not dispute.^^®  As  to  third  persons  the  pledgee's  title  is  the  same  as 
that  of  the  pledgor.^®"  If  the  pledgor  had  a  title  good  against  all 
the  world,  the  pledgee  acquires  the  same  rights.  If  the  pledgor's 
title  was  defective,  the  pledgee  holds  the  pledged  property,  subject  to 
the  same  liability  to  the  title  being  divested.  By  a  pledge  of  prop- 
erty, the  pledgee  acquires  no  better  rights  than  the  pledgor  had.^" 
But  there  is  an  exception  to  this  rule  in  the  case  of  a  pledge  of  nego- 
tiable instruments,  and  where  the  owner  of  property  has  clothed 
another  with  the  indicia  of  title.^®^  In  such  case  a  pledgee  in  good 
faith  can  hold  the  property  against  the  real  owner,  as  was  seen  in 
discussing  pledges  by  factors,  and  similar  cases.^^' 

Same — Negotiable  Instruments. 

When  a  person  takes  negotiable  paper  before  maturity.  In  the  usual 
course  of  business,  as  collateral  security,  and  makes  advances  at  the 
time  upon  the  credit  of  such  paper,  he  is  considered  by  all  the  authori- 
ties as  a  bona  fide  holder  for  value,  within  the  rule  for  the  protection 
of  holders  of   commercial   paper.^^*     The  indorsement  and  deliv- 

179  Goldstein  v.  Hort,  30  Cal.  372. 

180  Duell  V.  Cudlipp,  1  Hilt.  (N.  Y.)  166;  Taylor  v.  Turner,  87  lU.  298;  Ag- 
new  V.  Johnson,  22  Pa.  St.  471;  Hooper  v.  Ramsbottom,  4  Camp.  121;  Gott- 
lieb V.  Hartman,  3  Colo.  53;  Hartop  v.  Hoare,  3  Atk.  44. 

181  Swett  V.  Brown,  5  Pick.  (Mass.)  178;  Reeves  v.  Smith,  1  La.  Ann. 
379;   Agnew  v.  Johnson,  22  Pa.  St.  471;   Gallaher  v.  Cohen,  1  Brown  (Pa.)  43. 

182  The  title,  legal  or  equitable,  by  which  a  collateral  security  is  held,  de- 
pends, not  on  the  title  to  the  principal  obligation,  but  on  the  method  of  trans- 
fer. Thomson-Houston  Electric  Co.  v.  Capitol  Electric  Co.,  12  C.  C.  A.  G43, 
G5  F.  341. 

183  See  ante,  p.  114. 

184  Swift  V.  Tyson,  16  Pet.  1;  Best  v.  Crall,  23  Kan.  342,  345:  Bell  v.  Bell. 
12  Pa.  St.  235;  Bowman  v.  Van  Kuren,  29  Wis.  209,  219;  Curtis  v.  Mohr.  18 
Wis.  615;  Bond  v.  Wiltse,  12  Wis.  611;  Jenkins  v.  Schaub,  14  Wis.  1;  Kinney 
V.  Kruse,  28  Wis.  183;  Dix  v.  Tully,  14  La.  Ann.  456;  Warner  v.  Fourth  Nat. 
Bank,  115  N.  Y.  251,  22  N.  E.  172;  Nelson  v.  Eaton,  26  N.  Y.  410,  416;  Kx- 
change  Bank  v.  Butner,  60  Ga.  654;  Griswoid  v.  Davis,  31  Vt.  390;  Worcester 
Nat.  Bank  v.  Cheeney,  87  111.  602.  One  who  receives,  as  collateral  security  to 
a  loan  then  made,  negotiable  bonds  not  yet  matured,  without  knowledge  of 
any  defense  to  such  bonds,  is  entitled  to  protection,  as  a  purchaser  thereof,  to 


136  BAILMENTS   FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

ery,  under  such  circumstances,  transfer  to  the  pledgee  the  title 
to  the  instrument,  and  give  him  an  original  and  paramount  right 
of  action  upon  it  against  the  previous  parties,  so  that  he  is  not 
affected  by  the  equities  existing  between  them.^®°  It  is,  of  course, 
an  obvious  and  necessary  consequence  of  these  decisions  that, 
by  the  negotiation  and  transfer  of  a  note,  under  such  circum- 
stances, the  pledgee  acquires  a  perfect  title  to  the  instrument, 
and  has  his  right  of  action  upon  it  against  the  previous  parties.^*' 
Otherwise,  he  would  not  be  protected,  and  the  instrument,  in  his 
hands,  would  not  be  discharged  of  all  equitable  and  legal  defenses 
to  which  it  may  have  been  subject  before  it  came  to  him.^*^ 

As  to  whether  a  pledgee  who  takes  negotiable  instruments  as 
security  for  a  pre-existing  debt  is  a  bona  fide  holder,  the  cases  are, 
on  some  points,  in  conflict.     On  this  question,  Mr.  Norton  ^^^  says: 

"'Antecedent  indebtedness'  means  a  debt  already  existing  at  the 
time  of  the  execution  of  a  contract,  whatever  it  may  be.  Such,  for 
example,  are  a  note  for  which  a  renewal  note  is  given,  or  a  debt  cre- 
ated in  buying  goods,  for  which,  at  the  expiration  of  the  terms  of 
credit  for  which  the  goods  were  sold,  a  note  is  given  in  extension. 
The  importance  of  the  doctrine  relates,  almost  always,  to  the  ques- 
tion whether  the  purchaser  of  the  paper  is  a  holder  for  value  or  not. 
If  he  is  to  be  treated  as  a  holder  for  value,  then  the  defenses  in 
favor  of  prior  parties  are  ruled  out.     If  not,  then  any  prior  party 

the  extent  of  the  amount  of  such  loan.  Hayden  v.  Lincoln  City  Electric  Ry. 
Co.,  43  Neb.  680,  62  N.  VV.  73. 

186  Vallaire  v.  Hartshorne,  21  N.  J.  Law,  665;  Youngs  v.  Lee,  12  N.  Y.  551; 
First  Nat.  Bank  v.  Fowler,  36  Ohio  St.  524;  Zellweger  v.  Gaffe,  5  Duer  (N.  Y.) 
87,  91;  Farwell  v.  Importers'  &  Traders'  Nat.  Bank,  16  Wkly.  Dig.  (N.  Y.)  20; 
Fisher  v.  Fisher,  98  Mass.  303;  Stoddard  v.  Kimball,  6  Gush.  (Mass.)  469; 
Draper  v.  Saxton,  118  Mass.  427;  Buchanan  v.  International  Bank,  78  III.  500, 
504;   Stotts  V.  Byers,  17  Iowa,  303;   Crosby  v.  Roub,  16  Wis.  616. 

188  Duncomb  v.  New  York,  H.  &  N.  R.  Co.,  84  N.  Y.  190;  Richardson  v. 
Grandall,  48  N.  Y.  348,  364;  Bank  of  New  York  v.  Vanderhorst,  32  N.  Y.  553; 
Miller  v.  Pollock,  99  Pa.  St.  202;  Munn  v.  McDonald,  10  Watts  (Pa.)  270: 
Stotts  V.  Byers,  17  Iowa,  303;  Crosby  v.  Roub,  16  Wis.  616;  Lyon  v.  Ewings, 
17  Wis.  61;  Bowman  v.  Van  Kuren,  29  Wis.  209,  219;  Hotchkiss  v.  National 
Banks,  21  Wall.  354;  Tiffany  v.  Boatman's  Inst.,  18  Wall.  375;  Michigan  Bank 
V.  Eldred,  9  Wall.  544- 

187  Curtis  V.  Mohr,  18  Wis.  015. 

188  Bills  &  Notes  (2d  Ed.)  2'J^:. 


§   r.4]  RIGHTS   AND    LIABILITIES   OF  PLEDGEE  BEFORE  DEFAULT.  V^>7 

may  raise  such  defenses  as  he  has  against  the  person  who  has  taken 
the  instrument  without  notice,  but  in  consideration  of  the  alleged 
antecedent  indebtedness. 

"The  wisest  theory,  all  things  being  considered,  is  the  doctrine  of 
Judge  Story.^^®  He  lays  down  the  doctrine  that  rpr.piving  siioli  pnrf>r 
in  payment  or  as  security  for  a  pre-existing  debt  is  receiving  il  for  a 
valuable  nnnsidprntion.  "Thus/  he  says,  *it  may  pass,  not  only  as 
security  for  new  purchases  and  advances  made  upon  the  transfer 
thereof,  but  also  in  payment  of,  and  as  security  for,  pre-existing 
debts.  In  this  way  the  creditor  is  thereby  enabled  to  realize  or  to 
secure  his  debt,  and  thus  may  safely  give  a  prolonged  credit,  or  for- 
bear from  taking  any  legal  steps  to  enforce  his  rights.  The  debtor 
also  has  the  advantage  of  making  his  negotiable  securities  of  equiv- 
alent value  to  cash.  Otherwise,  the  discounts,  by  banks,  of  nego- 
tiable securities,  are  restricted,  and  credit  and  circulation  of  nego- 
tiable paper  hampered.'  This  doctrine  is  followed  by  the  weight  of 
authority  throughout  the  United  States.  And  it  certainly  seems  the 
sounder  business  policy  to  maintain  that  the  transfer  of  a  negotia- 
ble security,  both  in  payment  and  as  security  for  an  antecedent  debt, 
is  a  transfer  for  value.^^°  However,  the  courts  of  some  jurisdic- 
tions, and  particularly  of  the  state  of  New  York,  have  taken  issue 
with  the  doctrine  of  Judge  Story.^®^  The  reasoning  of  these  courts 
is  based  not  so  much  upon  the  practical  doctrines  of  commercial 
convenience  as  upon  the  strict  logic  of  the  law  itself.  Their  doc- 
trine is  that  the  position  of  the  bona  fide  holder  rests  its  founda- 
tions upon  the  equitable  doctrine  that  a  purchaser  who  holds  the 
legal  title  to  property  merely  as  security  or  as  the  payment  of  a  pre- 

188  Swift  V.  Tj'son,  16  Pet.  1,  14,  Johns.  Cas.  Bills  &  N.  179. 

180  Bank  of  Metropolis  v.  New  England  Bank,  1  How.  234;  Barney  v. 
Earle,  13  Ala.  106;  Brush  v.  Scribner,  11  Conn.  388;  Meadow  v.  Bird,  22  Ga. 
246;  Conkling  v.  Vail,  31  111.  166;  McKniglit  v.  Knisely,  25  Ind.  336;  Homes 
V.  Smyth,  16  Me.  177;  Blanchard  v.  Stevens,  3  Cush.  162;  Thacher  v.  Pray, 
113  Mass.  291;  Outhwite  v.  Porter,  13  Mich.  533;  Stevenson  v.  Hyland.  11 
Minn.  198  (Gil.  128);  Struthers  v.  Kendall,  41  Pa.  St.  214;  Dixon  v.  Dixon. 
81  Vt.  450.  See,  also,  Bridgeport  City  Bank  v.  Welch,  29  Conn.  476;  Manning 
V.  McOlure,  36  111.  490;  Washington  Bank  v.  Lewis,  22  Pick.  (Mass.)  24; 
Fisher  v.  Fisher,  98  Mass.  303;  Armour  v.  McMlchael,  36  N.  J.  Law,  «2; 
Cobb  V.  Doyle,  7  R.  I.  550. 

"1  Stalker  v.  McDonald,  6  Hill  (N.  Y.)  93. 


138  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Cll.   4- 

existing  debt,  without  parting  with  anything  of  value,  is  not  enti- 
tled to  hold  as  against  the  prior  equitable  owner.  The  two  ele- 
ments of  absence  of  knowledge  and  value  given  must  concur  to 
make  the  holder's  equity  a  superior  one.  And  taking  the  instru- 
ment as  a  mere  security  or  in  nominal  payment  of  a  pre-existing  debt 
is  not  giving  value  for  it.  Hence,  the  position  of  the  holder,  lacking 
the  element  of  value  given,  does  not  entitle  him  to  overthrow  the 
defenses  which  other  parties  may  interpose.^*^  There  must  be  value 
given  or  allowed,  on  his  part,  on  the  strength  of  the  identical  paper 
on  which  the  action  is  brought,  to  make  the  holder  a  purchaser  for 
value.^^^  The  comparative  equities  of  prior  parties  and  the  holder 
turn  upon  this  point.  In  case  of  payment  the  question  is  whether 
he  has  taken  the  instrument  in  nominal  payment,  without  other  evi- 
dence of  intention  to  discharge  it  than  the  ordinary  business  trans- 
action of  accepting  it,  or  receipting  it  in  payment,  or  crediting  it  on 
account.  In  each  of  these  latter  cases  he  stands  in  the  position  he 
held  before  receipt  of  the  paper,  with  the  added  property  of  the 
paper  in  his  hands,  for  which  he  has  neither  given  nor  suffered  any- 
thing. His  right  to  proceed  upon  the  original  indebtedness  after 
the  maturity  of  the  paper  is  unimpaired.  And  equity  will  not  tol- 
erate his  holding  the  additional  paper,  to  the  prejudice  of  those  par- 
ties who  have  prior  rights  or  defenses  which  render  his  claim  a 
wrongful  one.  Hence,  the  rule  is  established  in  many  states,  in  con- 
tradiction to  the  wiser  theory  of  Judge  Story,  that  one  who  re- 
ceives paper  before  it  is  due,  without  any  notice  or  knowledge  of 
any  fraud  in  its  inception  or  transfer,  but  for  a  precedent  debt,  and 
without  parting  with  any  value  or  valuable  consideration,  does  not 
acquire  a  valid  title  to  the  paper,  but  takes  it  subject  to  all  its  in- 
firmities.^®*    The  courts  \('ho  have  ador^ted  this  position  have,  how- 

102  Watson  v.  Sirlney  F.  Woody  Printing  Co.,  oG  Mo.  App.  145. 

183  Bay  V.  Codclmj,-ton,  5  Johns.  Ch.  54,  Johns.  Cas.  Bills  &  N.  183. 

104  Phoenix  Ins.  Co.  v.  Church,  81  N.  Y.  218;  Comstock  v.  Hicr,  73  N.  Y. 
269;  Turner  v.  Treadway,  53  N.  Y.  650;  Weaver  v.  Barden,  49  N.  Y.  286; 
Lawrence  v.  Clark,  36  N.  Y.  128;  Farrington  v.  Frankfort  Bank,  24  Barb. 
554;  Moore  v.  Ryder,  65  N.  Y.  438;  Rosa  v.  Brotherson,  10  Wend.  85;  Payne 
V.  Cutler,  13  Wend.  605;  Goggerley  v.  Cuthbort,  2  Bos.  &  P.  (N.  R.)  170; 
Evans  V.  Kymer,  1  Barn.  &  Adol.  528;  Jones  v.  Fort,  9  Barn.  &  C.  764;  Worm- 
ley  V.  Lowry,  1  Humph.  (Tenn.)  468;  Ingham  v.  Vaden,  3  Humph.  (Tenn.)  51; 
Rhea  v.  Allison,  3  Head  (Tenn.)  176;  Hickerson  v.  Raiguel,  2  Heisk.  (Tenn.) 
829. 


§    ;U]  KIGKT3   AND   LIABILITIES  OF  PLEDGEE   l?EF(iUE   DEKALIl.T.  L'JO 

ever,  confined  the  scope  of  the  rule  to  narrow  limits.  If  it  appears 
that  the  holder  has  in  any  wise  given  value  for  the  transfer,  his  tltli' 
has  been  supported. 

"This  has  given  rise  to  a  large  number  of  decisions  as  to  the 
meaning  of  value  in  taking  paper,  both  in  payment  of  and  as  collat- 
eral security  for  a  precedent  debt,  which  may  be  approximately 
classified  as  follows: 

"(1)  Value  is  given  upon  transfer  when  the  instrument  is  trans- 
ferred in  satisfaction  of  a  pre-existing  debt,  whether  it  is  in  whole 
or  part  payment  of  the  debt,t  or  whether  the  instrument  surren- 
dered has  matured,  or  is  not  yet  due.J  This  is  because  the  creditor, 
in  surrendering  his  rights  under  the  old  debt  in  exchange  for  the 
new  paper,  parts  with  value.* 

"(2)  Value  is  given  upon  transfer  when,  at  the  time  thereof,  se- 
curity is  surrendered  by  the  holder  in  consideration  of  the  receipt 
by  him  of  the  instrument.  Such  a  holder  takes  the  instrument  free 
from  the  defenses  of  antecedent  parties,  to  the  extent  of  the  collat- 
erals surrendered.!! 

"The  situation  of  the  creditor  discharging  a  pre-existing  debt  or 
surrendering  securities  in  consideration  of  the  transfer  of  paper  to 
him,  from  a  legal  point  of  view,  is  not  dissimilar  to  that  of  a  cred- 
itor receiving  paper  as  collateral  security  for  a  debt  due  from  the 
transferror  to  him.  In  taking  the  paper  as  collateral  security,  the 
creditor  still  retains  all  his  rights  upon  the  original  indebtedness. 
The  paper  is  received  by  him  merely  to  further  assure  the  certainty 
of  the  recovery  of  his  debt.     He  may  or  may  not  recover  it  in  full, 

t  Chrysler  v.  Renois,  43  N.  Y    209. 

t  Day  V.  Saunders,  1  Abb.  Dec.  495;   Youngs  v.  Lee,  12  N.  Y.  551. 

*  Mayer  v.  Heidelbacb,  123  N.  Y.  332,  25  N.  E.  41G;  American  Exch. 
Nat.  Bank  v.  New  York  B.  &  P.  Co.,  74  Hun,  446,  2G  N.  Y.  Supp.  822; 
Ward  V.  Howard,  88  N.  Y.  74;  Chrysler  v.  Renois,  43  N.  Y.  209;  Brown 
V.  Leavitt,  31  N.  Y.  113;  Youngs  v.  Lee,  12  N.  Y.  551;  MLs  v.  National 
Bank  of  Bloomington,  91  111.  20;  Bardsley  v.  Delp,  88  Pa.  St.  420;  Norton  v. 
Waite,  20  Me.  175;  Brush  v.  Scribner.  11  Conn.  388;  Dixon  v.  Dixon,  31  Vt. 
450;  Kellogg  v.  Fancher,  23  Wis.  21;  McKnight  v.  Knisely,  25  Ind.  330;  May- 
berry  V.  Morris,  G2  Ala.  116. 

W  Goodwin  v.  Conklin,  85  N.  Y.  21;  Phoenix  Ins.  Co.  v.  Church.  81  N.  Y. 
218;  Park  Bank  v.  Watson,  42  N.  Y.  490;  Bank  of  Balina  v.  Babcock,  21  Wend. 
CN.  Y.)  499. 


140  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

and  if  he  does  not  he  may  proceed  upon  his  collateral.  Therefore, 
in  weighing  the  comparative  equities  of  such  persons,  and  those 
from  whom  the  paper  has  been  derived  through  wrong,  the  turning 
point  is,  naturally,  value.  This  renders  the  equity  superior  or  infe- 
rior according  as  it  has  or  has  not  been  given.  And  in  determining 
the  question  the  cases  have  been  classified  as  follows: 

^'(1)  Where  the  debt  is  contracted  at  the  time  of  transfer  and  on 
the  faith  of  the  bill  or  note,  or  indorsement  of  a  third  party  as  col- 
lateral security,  that  debt  itself  forms  a  part  of  the  consideration  of 
the  transfer,  and  constitutes  value.  This  is  because  the  holder  may 
be  supposed  to  part  with  his  property  upon  the  faith,  not  only  of  the 
principal  instrument,  but  also  of  the  instrument  put  up  as  collateral. 
The  two,  as  elements  of  the  consideration,  are  inseparable.  The 
courts  will  not  inquire  whether  the  holder  parted  with  value  be- 
cause of  the  original,  or  because  of  the  collateral,  paper.  They  con- 
sider such  value  given  for  both.^^° 

"(2)  Where  the  instrument  is  accommodation  paper,  that  fact  is 
no  defense  to  a  holder  who  receives  it  as  collateral  to  a  pre-existing 
debt.  This  is  because  the  delivery  of  the  instrument  as  collateral 
is  in  furtherance  of  the  purpose  of  the  accommodation,  which  was 
to  obtain  credit.  The  equity  of  the  holder,  who  so  takes  it,  is  there- 
fore superior  to  that  of  the  accommodation  party  who  gives  it.^®* 
But  the  reason  of  this  rule  ceases  to  apply,  and  the  rule  itself  is  oth- 
erwise, when  the  instrument  has  been  diverted  or  procured  through 
fraud.i^^ 

"(3)  Where  the  pre-existing  debt  has  fallen  due,  and  there  is  a 
transfer  of  a  bill  or  note  as  collateral  security,  with  an  express 
agreement  for  delay,  the  forbearance  is  a  sufficient  consideration. 
This  is  because  such  forbearance  is  a  surrender  by  the  holder  of  his 
valuable  right  of  immediate  prosecution.^ ^^  But  the  rule  only  ap- 
is b  Bank  of  New  York  v.  Vanderhorst,  32  N.  Y.  553,  557;  Bank  of  Chenango 
V.  Hyde,  4  Cow.  (N.  Y.)  567;  Williams  v.  Smith,  2  Hill.  (N.  Y.)  301. 

196  Continental  Nat.  Bank  v.  Townsend,  87  N.  Y.  8;  Grocers'  Bank  v.  Pen- 
field,  69  N.  Y.  502;   Schepp  v.  Carpenter,  51  N.  Y.  602. 

19T  Schepp  V.  Carpenter,  51  N.  Y.  G02,  604;  Spencer  v.  Ballon,  18  N.  Y.  327, 
331;  Woodhull  v.  Holmes,  10  Johns  (N.  Y.)  231;  Skilding  v.  Warren,  15 
Johns.  (N.  Y.)  274. 

108  Mechanics'  &  Farmers'  Bank  of  Albany  v.  Wixson,  42  N.  Y.  438;  Trad- 


§   34]  RIGHTS   AND   LIABILITIES   OF   PLEDGEE   BEFORE  DKKAULT.  141 

plies  for  the  reason  that  the  holder,  by  valid  agreement,  has  estopped 
himself  from  prosecuting.  If,  therefore,  the  agreement  is  invalid, 
and  there  is  no  legal  reason  why  the  holder  should  not  prosecute,  the 
receipt  of  the  paper  is  upon  a  consideration  which  is  worthless  in 
law,  and  the  holder  is  deemed  to  have  given  no  value.^"* 

"(4)  In  addition  to  these  rules  are  the  principles  already  discussed, 
which  apply  to  the  position  of  the  holder  taking  the  instrument  as 
collateral,  as  when  he  talves  it  in  payment.  They  are  (a)  where  the 
note  is  received  in  payment  of  one  then  surrendered  and  canceled, 
or  in  absolute  payment;  (b)  and  where  securities  are  surrendered. 
The  principles  upon  which  the  title  of  the  holder  of  collateral  se- 
curity rests  regulate  also  the  amount  which  may  be  collected  out 
of  it.'' 

It  is  thus  seen  that  the  points  of  conflict  are  narrowed  to  quite 
meager  limits.  The  greater  number  of  the  courts  and  text  writers 
agree  in  considering  the  pledgee  a  holder  for  value  in  all  cases. 
When  no  indulgence  has  been  given  the  debtor,  or  other  considera- 
tion passed  which  is  recognized  by  the  contra  cases  as  sufiQcient  to 
make  the  pledgee  a  holder  for  value,  the  courts  having  the  weight 
of  authority  hold  that  the  undertaking  necessarily  implied  by  be 
coming  a  party  to  the  instrument,  to  fix  the  liability  of  prior  parties 
by  due  presentment  for  payment,  and  due  notice  in  case  of  nonpay- 
ment, will  suffice  to  give  the  pledgee  protection. ^°''  It  is  argued 
that  the  pledgee,  by  neglecting  to  take  the  steps  necessary  to  fix  the 
liability  of  prior  parties,  becomes  liable  to  the  pledgor  for  any  loss 
so  occurring,  and  therefore,  since  he  is  subject  to  the  responsibili- 
ties, he  is  entitled  to  the  rights,  of  a  holder  for  value.'"'  The  courts 
of  New  York  take  the  lead  in  support  of  the  opposite  view,  but  the 
cases  in  that  state  cannot  be  reconciled  with  each  other. ^^''^ 

ers'  Bank  of  Rochester  v.  Bradner,  43  Barb.  (N.  Y.)  379;  Burns  v.  Kowlnnd. 
40  Barb.  (N.  Y.)  368;   Watson  v.  Randiill,  20  Wend.  (N.  Y.)  201. 

189  Atlantic  Nat.  Bank  of  New  York  v.  Franklin,  55  N.  Y.  235. 

200  Railroad  Co.  v.  National  Bank,  102  U.  S.  25.  And  see  Penn  Bank  v. 
Frankish,  91  Pa.  St.  339;  Goodman  v.  Simmonds,  19  Mo.  lOG;  Grant  v.  Kid- 
well,  30  Mo.  455;  Brainard  v.  Reavis,  2  Mo.  App.  490;  First  Nat.  Bank  v. 
Strauss,  G6  Miss.  479,  6  Soutli.  233;  Maitland  v.  Citizens'  Nat.  Bank.  40  Md. 
540;  Straughan  v.  Faircbild,  80  Ind.  598;  Continental  Nat  Bank  t.  Town- 
send,  87  N.  Y.  10. 

«oi  Railroad  Co.  r.  National  Bank,  102  U.  S.  25. 

»o2  See  1  DaBiel,  Neg.  Inst.  (4th  Ed.)  §  831. 


142  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

A  pledgee  of  a  negotiable  instrument  to  secure  future  advances 
is  protected,  as  a  bona  fide  holder,  for  all  advances  made  before  he 
receives  notice  of  defenses  to  the  instrument;  ^°^  or,  if  he  is  under  a 
binding  contract  to  make  further  advances,  he  is  protected  for  ad- 
vances so  made  after  notice,  up  to  the  amount  he  is  so  bound  to 
advance.^"* 

A  pledgee  of  negotiable  paper  can  pass  a  good  title  thereto,  though 
he  transfers  it  in  violation  of  the  rights  of  the  pledgor.'°°  But  not 
if  the  transferee  has  notice  of  the  character  in  which  the  pledgee 
holds  the  paper.^°^  Such  notice  may  be  given  by  an  indorsement 
on  the  instrument  that  it  is  transferred  to  the  pledgee  as  collateral 
security. '^"^ 

Same — Nonnegotiable  Instruments. 

But  a  pledgee  of  a  nonnegotiable  instrument  or  chose  in  action 
acquires  only  the  rights  of  the  pledgor,  and  takes  the  pledge  subject 
to  all  equities  which  existed  against  the  pledgor.^°^  So,  too,  a 
pledgee,  in  such  cases,  can  transfer  no  better  title  than  he  has  him- 
self.'°"     But  a  bona  fide  purchaser  for  value  of  a  nonnegotiable 

«0  3  Kerr  v.  Cowen,  2  Dev.  Eq.  (N.  C.)  356;  Buchanan  v.  International  Bank, 
78  111.  500;   Matthews  v.  Rutherford,  7  La.  Ann.  225. 

204  Kerr  v.  Cowen,  2  Dev.  Eq.  (N.  C.)  356,  358. 

20  6  Coit  V.  Humbert,  5  Cal.  260;  Ballard  v.  Burgett,  40  N,  Y.  314,  318;  Mc- 
Neil V.  Tenth  Nat.  Bank,  46  N.  Y.  325;  Sargent  v.  Metcalf,  5  Gray  (Mass.) 
806;  Stoddard  v.  Kimball,  6  Cush.  (Mass.)  469;  Fisher  v.  Fisher,  98  Mass. 
803;  Wheeler  v.  Guild,  20  Pick.  (Mass.)  545;  Valette  v.  Mason,  1  Ind.  288; 
Trustees  of  Iowa  College  v.  Hill,  12  Iowa,  462;  Patterson  v.  Deering,  1  A.  K. 
Marsh.  (Ky.)  326. 

20  0  Vinton  v.  King,  4  Allen  (Mass.)  562;  National  Bank  of  North  America 
T.  Kirby,  108  Mass.  495. 

20  7  Haskell  v.  Lambert,  16  Gray  (Mass.)  592;  Costelo  v.  Crowell,  127  Mass. 
892;   Robins  v.  May,  11  Adol.  &  E.  213. 

208  Works  V.  Meritt,  105  Cal.  467;  Moore  v.  Metropolitan  Nat.  Bank,  55  N. 
Y,  41;   Fullerton  v.  Sturges,  4  Ohio  St.  529. 

209  International  Bank  v.  German  Bank,  71  Mo.  183;  Weirick  v.  Mahoning 
County  Bank,  16  Ohio  St.  297;  People  v.  Johnson,  100  111.  537;  Isett  v.  Lucas,  17 
Iowa,  503,  507;  Burtis  v.  Cook,  16  Iowa,  194.  The  payee  of  a  nonnegotiable 
note,  secured  by  mortgage,  who  transfers  the  note  and  mortgage  as  collat- 
eral security  for  a  debt,  is  not  liable  to  the  transferee  for  any  deficiency  aris- 
ing on  foreclosure  of  the  mortgaged  premises.  Haber  v.  Brown,  101  Cal.  445^ 
85  Pac.  1035. 


§    34]  RIGHTS   AND   LIABILITIES   OF   PLEDGEE   BEFORE   DEFAULT.  H.'J 

chose  in  action,  fr(>m_oneji20D_whom  the  owner  has,  by  aasiKnnwiit, 
conferred  the  apparent  absolute  ownership,  where  the  purchase  is 
made  upon  the  faith  of  such  apparent  ownership,  obtains  a  valid 
title,  as  against  the  real  owner,  who  is  estopped  from  assertin lt  a 
title  in  hostilif^y  tlipi-pfn  =^ip  And  so  a  pledgee  from  one  h.'^vipp^  sndi 
Indicia  of  ownership  would  take  free  from  the  claims  of  the  real 
owner.' ^^ 

Same — Certificates  of  Stock. 

Certificates  of  stock  in  a  corporation  are  not  regarded  as  negotia- 
ble instruments,  in  the  sense  of  the  commercial  law,  so  that,  by  their 
indorsement  and  delivery  to  a  pledgee  in  good  faith,  a  title  to  the 
stock  they  profess  to  represent  may  be  acquired.'^ ^*  They  contain, 
in  the  first  place,  no  words  of  negotiability.  They  declare,  simply, 
that  the  person  named  is  entitled  to  certain  shares  of  stock.  They 
do  not,  like  negotiable  instruments,  run  to  the  bearer,  or  to  the  or- 
der of  the  party  to  whom  they  are  given. 

Stocks  are  not,  like  bank  bills,  the  immediate  representative  of 
money,  and  intended  for  circulation.  Nor  are  they,  like  notes  and 
bills  of  exchange,  invented  to  supply  the  exigencies  of  commerce, 
and  governed  by  the  peculiar  code  of  the  commercial  law.  They 
are  not  like  exchequer  bills  and  government  securities,  which  are 
made  negotiable  either  for  circulation,  or  to  find  a  market  Nor 
are  they  like  corporation  bonds,  which  are  issued  in  negotiable  form 
for  sale,  and  as  a  means  for  raising  money  for  corporate  uses.  The 
distinction  between  all  these  and  corporate  stocks  is  marked  and 
striking.     They  are  all,  in  some  form,  the  representative  of  money, 

210  Combes  v.  Chandler,  83  Ohio  St.  178;  Moore  v.  Metropolitan  Nat.  Bank. 
55  N.  Y.  41,  overruling  Bush  v.  Lathrop,  22  N.  Y.  535. 

211  International  Bank  v.  German  Bank,  71  Mo.  183;  Weirick  v.  Mahoning' 
County  Bank,  16  Ohio  St.  297;  Combes  v.  Chandler,  33  Ohio  St.  17S;  Weyh  v. 
Boylan,  85  N.  Y.  394;  Ashton's  Appeal,  73  Pa.  St.  153;  Cowdrey  v.  Vanden- 
burgh,  101  U.  S.  572;  Merchants'  Banking  Co.  of  London  v.  Phoenix  Bessemer 
Steel  Co.,  5  Ch.  Div.  205,  217;  Goodwin  v.  Robarts,  L.  R.  10  Exch.  7G.  The 
pledgee,  however,  must  be  without  notice.  Swan  v.  Produce  Bank  of  New 
York,  24  Hun  (N.  Y.)  277. 

212  The  assignment  of  shares  of  railroad  stock  as  collateral  security  for  a 
pre-existing  debt,  not  contracted  on  the  faith  of  the  security,  confers  upon 
the  assignee  no  better  title  than  his  assignor  had,  and  he  takes  subject  to 
equities.    City  of  Cleveland  v.  State  Bank  of  Ohio,  16  Ohio  St.  230. 


144  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

and  may  be  satisfied  by  payment  in  money  at  a  time  specified.  Cer- 
tificates of  stock  are  not  securities  for  money,  in  any  sense.  Much 
less  are  they  negotiable  securities.  They  are  simply  the  muniments 
and  evidence  of  the  holder's  title  to  a  given  share  in  the  property 
and  franchises  of  the  corporation  of  which  he  is  a  member."^  When 
spurious  certificates  of  stock  are  issued  by  an  agent  of  a  corporation 
which  had  no  power  to  issue  such  stock,  pledgees  or  purchasers  of 
such  stock  acquire  no  right  to  share  pro  rata  the  corporate  assets 
with  the  holders  of  the  real  stock,^^*  but  the  corporation  may  be  lia- 
ble on  the  certificates  wrongfully  issued,  by  having  given  the  agent 
apparent  authority  to  issue  the  stock,  and  so  made  it  possible  for 
him  to  defraud  innocent  persons  relying  on  such  apparent  author- 

Pledges  of  stock  being  subject  to  the  same  rules  as  pledges  of  cor- 
poreal property,  it  follows  that  a  pledge  of  certificates  which  have 
been  stolen,  or  the  possession  of  them  obtained  by  fraud,  is  invalid 
against  the  owner.^^^  But  if  he  voluntarily  parted  with  his  posses- 
sion, though  induced  to  do  so  by  a  consideration  affected  with  fraud, 
a  bona  fide  pledgee  acquires  rights  superior  to  the  defrauded  own- 
er.*^^     And,  as  was  seen  in  discussing  the  title  a  pledgee  of  corpo- 

213  Mechanics'  Bank  v.  New  York  &  N.  H.  R.  Co.,  13  N.  Y.  509;  Wilson  v. 
Little,  2  N.  Y.  443,  447;  Roberts'  Appeal,  85  Pa.  St.  84;  Weston  v.  Bear  River 
and  A.  Water  &  Mining  Co.,  5  Cal.  186;  Pinkerton  v.  Manchester  &  L.  R.  R., 
42  N.  H.  424,  447;  City  Fire  Ins.  Co.  v.  Olmsted,  33  Conn.  476,  480;  Piatt  v. 
Hawkins,  43  Conn.  139;  Piatt  v.  Birmingham  Axle  Co.,  41  Conn.  255,  267; 
Shropshire  Union  Railway  &  Canal  Co.  v.  Reg.,  L.  R.  7  H.  L.  496;  Ship- 
man  V.  Aetna  Ins.  Co.,  29  Conn.  245;  Hall  v.  Rose  Hill  &  E.  Road  Co.,  70  111. 
673. 

214  New  York  &  N.  H.  R.  Co.  v.  Schuyler,  34  N.  Y.  30;  Bank  of  Kentucky 
V.  Schuylkill  Bank,  1  Pars.  Eq.  Cas.  (Pa.)  180;  Hall  v.  Rose  Hill  &  E.  Road 
Co.,  70  111.  673;   In  re  Bahia  &  S.  F.  Ry.  Co.,  L.  R.  3  Q.  B.  584. 

215  Tome  V.  Parkersburg  R.  Co.,  39  Md.  36;  Appeal  of  Kisterbock,  127  Pa. 
St.  601,  18  Atl.  381;  Willis  v.  Fry,  13  Phil.  (Pa.)  23;  Bridgeport' Bank  v.  New 
York  &  N.  H.  R.  Co.,  30  Conn.  231.     And  see  cases  in  preceding  note. 

216  Pratt  v.  Taunton  Copper  Manuf'g  Co.,  123  Mass.  110;  Machinists'  Nat 
Bank  v.  Field,  126  Mass.  345;  Bercich  v.  Marye,  9  Nev.  312;  Davis  v.  Bank  of 
England,  2  Bing.  393;  Tayler  v.  Great  Indian  i'eniusula  Ry.  Co.,  4  De  Gex  & 
J.  559. 

a  IT  McNeil  v.  Tenth  Nat.  Bank  of  New  York,  46  N.  Y.  325;    Moore  v.  Miller. 


§    34]  RIGHTS  AND  LIABILJTIE8  OP  PLEDGEE  BEFORE  DEFAULT.  146 

real  chattels  acquires,  a  pledgee  of  stock  may  be  invested  with 
rights  thereto  by  estoppel.*^ •  The  rights  of  a  bona  fide  holder, 
to  whom  the  apparent  owner  of  the  stock  has  plcd<;ed  it,  as  against 
the  true  owner  of  the  stock,  depend  on  the  principle  that  one  wlio 
Las  conferred  upon  another,  by  a  written  transfer,  all  the  indicia 
of  ownership  of  property,  is  estopped  to  assert  title  to  it,  as  against 
a  third  person  who  has,  in  good  faith,  purchased  it,  for  value,  from 
the  appai'ent  owner.""  This  rule  does  not  hold  good  when  thi^ 
pledgor  is  known  to  be  an  agent,  or  to  be  acting  in  some  fiduciary 
relation  to  the  owner  of  the  stock.^^°  The  knowledge  may  be  ac- 
quired in  any  way,  and  notice  is  implied  when  the  certificates  run 

6  Lans.  (N.  Y.)  896;  Crocker  v.  Crocker,  81  N.  Y.  507;  Wood's  Appeal,  92  Pa. 
St.  879;  Burton's  Appeal,  93  Pa.  St.  314;  Pennsylvania  Ry.  Oo.'s  Appeal,  86 
Pa.  St.  80;  Otis  v.  Gardner,  105  111.  436;  Walker  v.  Detroit  Transit  Ry.  Oo., 
47  Mich.  338,  11  N.  W.  187;  Strange  v.  Houston  &  T.  G.  R.  Go.,  53  Tex.  162: 
Mount  Holly,  L.  &  M.  Turnpike  Co.  v.  FeiTee,  17  N.  J.  Eq.  117;  Thompson  v 
Toland,  48  Gal.  112;  Stone  v.  Marye,  14  Nev.  362;  Borland  v.  Clark,  26  Kan. 
840. 

"18  Otis  V.  Gardner  (1883)  106  111.  436;  Strange  v.  Houston  &  T.  O.  R.  Co., 
53  Tex.  1G2;  Fraser  v.  City  Council  of  Charleston,  11  S.  C.  486.  And  see 
cases  cited  in  preceding  note.  One  who  pledges  stock  Is  not  thereby  estopped 
to  assert  his  claims  against  the  corporation  for  money  owing  him,  and  there- 
fore his  assignee  for  the  benefit  of  creditors  can  enforce  such  claims,  though 
it  render  the  stock  worthless.  Janney  v.  Merchants'  &  Planters'  Nat.  Bank, 
18  South.  761,  98  Ala.  515. 

»i»  Wood's  Appeal,  92  Pa.  St.  37G;  Bentinck  v.  Bank,  3  Reports,  120,  [1893] 
2  Ch.  120;  Persch  v.  Quiggle,  57  Pa.  St.  247;  Jarvis  v.  Rogers,  13  Mass. 
105.  The  owner  of  stock  certificates,  fraudulently  pledged  by  one  hold- 
ing them  as  trustee,  is  not  estopped  from  claiming  them  of  the  pledgee,  by 
standing  by,  after  having  notified  the  pledgee  of  his  claim,  and  demanding 
the  stock,  and  without  protest  witnessing  the  pledgee  pay  an  assessment 
theretofore  made  on  the  stock.  Shaw  v.  Spencer,  100  Mass.  382.  Where  a 
bank  wrongfully  pledged  stock  deposited  with  It,  the  facts  that  the  stock  was 
Issued  in  the  name  of  the  owner,  and  that  the  power  of  attorney  to  transfer 
it  was  a  detached  paper,  and  not  acknowledged  before  a  notary  public,  as  re- 
quired by  the  rules  of  the  stock  exchange,  do  not  charge  the  pledgees  with 
notice  of  the  defect  in  the  pledgor's  title.  Smith  v.  Savin,  36  N.  E.  338.  141 
N.  Y.  315. 

2  80  Porter  v.  Parks,  49  N.  Y.  564;  Newberry  v.  Detroit  &  L.  S.  Iron  Manuf'g 
Co.,  17  Mich.  141;  Denny  v.  Lyon,  38  Pa,  St  9a  But  see  Felt  v.  Heye,  23 
How.  Prac.  (N.  Y.)  359. 

LAWBAILM.— 10 


146  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

to  the  pledgor  as  "trustee,"  "^  or  to  the  "estate  of"  a  deceased  per- 

A  bill  of  lading  represents  the  property,  aid  any  bona  fide  title, 
for  valuable  consideration,  obtained  through  a  pledge  of  the  bill  of 
lading,  is  as  valid  and  effectual  a  title  to  the  goods  as  could  be  ob- 
tained by  an  actual  delivery  of  the  goods  themselves.^^^  But  a  bill 
of  lading,  even  when,  in  terms,  running  to  order  or  assigns,  is  not 
negotiable,  like  a  bill  of  exchange,  but  a  symbol  or  representative 
of  the  goods  themselves;  and  the  rights  arising  out  of  the  transfer 
of  a  bill  of  lading  correspond,  not  to  those  arising  out  of  the  indorse- 
ment of  a  negotiable  promise  for  the  payment  of  money,  but  to  those 
arising  out  of  a  delivery  of  the  property  itself  under  similar  circum- 
stances.^^* If  the  bill  of  lading  is  once  assigned  or  indorsed  gener- 
ally by  the  original  holder,  upon  or  with  a  view  to  a  sale  of  the 

221  Jaudon  v.  National  City  Bank,  8  Blatchf.  430,  Fed.  Cas.  No.  7,230;  Dun- 
can V.  Jaudon,  15  Wall.  165;  Swan  v.  Produce  Bank,  24  Hun  (N.  Y.)  277; 
Budd  V.  Munroe,  18  Hun  (N.  Y.)  31G;  Shaw  v.  Spencer,  100  Mass.  3S2;  Sturte- 
vant  V.  Jaques,  14  Allen  (Mass.)  523;  Fisher  v.  Brown,  104  Mass.  259;  Gaston 
V.  American  Exchange  Nat.  Bank,  29  N.  J.  Eq.  98;  Naples  v.  Medlin,  1  Mur- 
phy (N.  C.)  219. 

222  Ham  V.  Ham,  58  N.  H.  70;   Panncll  v.  Hurley,  2  Colly.  241. 

223  Rowley  V.  Bigelow,  12  Pick.  (Mass.)  307;  Forbes  v.  Boston  &  L.  R.  Co.. 
133  Mass.  154;  Hathaway  v.  Haynes,  124  ISIass.  311;  First  Nat,  Bank  of 
Green  Bay  v.  Dearborn,  115  Mass.  219;  First  Nat.  Bank  of  Cairo  v.  Crocker, 
111  Mass.  1G3;  Allen  v.  Williams,  12  Pick.  (Mass.)  297;  De  Wolf  v.  Gardner, 
12  Cush.  (Mass.)  19;  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497;  Holbrook  v. 
Wight,  24  Wend.  (N.  Y.)  169;  Cayuga  County  Nat.  Bank  v.  Daniels,  47  N.  Y. 
631;  Farmers'  &  Mechanics'  Nat.  Bank  v.  Logan,  74  N.  Y.  568;  First  Nat. 
Bank  of  Cincinnati  v.  Kelly,  57  N.  Y.  34;  Holmes  v.  German  Security  Bank, 
87  Pa.  St.  525;  Peters  v.  Elliott,  78  111.  321,  326;  Michigan  Cent.  R.  Co.  v. 
Phillips,  60  111.  190;  Taylor  v.  Turner,  87  111.  296;  Security  Bank  of  Minne- 
sota v.  Luttgen,  29  Minn.  363,  13  N.  W.  151;  Emery  v.  Irving  Nat.  Bank,  25  Ohio 
Bt.  360;  Adoue  v.  Seeligson,  54  Tex.  593;  McCants  v.  Wells,  4  S.- 0.381;  First 
Nat.  Bank  of  Peoria  v.  Northern  R.  Co.,  58  N.  H.  203;  Gibson  v.  Stevens,  8 
How.  (U.  S.)  384;  Shaw  v.  Railroad  Co.,  101  U.  S.  557,  564;  Dows  v.  National 
Exchange  Bank,  91  U.  S.  618. 

22*  Barnard  v.  Campbell,  55  N.  Y.  462;  Allen  v.  Williams,  12  Pick.  (Mass.) 
297;  Davenport  Nat.  Bank  v.  Homeyer,  45  Mo.  145;  Canadian  Bank  of  Com- 
merce V.  McCrea,  108  111.  281;  Burton  v.  Curyea,  40  111.  320;  Evans ville  & 
T.  BL  R.  Co.  V.  Erwln,  84  Ind.  457,  466;   The  Idaho,  93  U.  S.  575. 


§    34]  RIGHTS  AND   LIABILITIES   OF  PLEDGEE   BEFORE   DEFAULT.  117 

property,  a  subsequent  transfer  thereof  to  a  bona  fide  pledgee  may 
indeed  give  him  a  good  title,  as  against  the  original  owner.""*  IJut 
so  long  as  the  bill  of  lading  remains  in  the  hands  of  the  originaJ 
party,  or  of  an  agent  intrusted  with  it  for  a  special  purpose,  and  not 
authorized  to  sell  or  pledge  the  goods,  a  person  who  gets  possession 
of  it  without  the  authority  of  the  owner,  although  with  the  assent 
of  the  agent,  acquires  no  title,  as  against  the  principal. ^^°  Statutes 
have  been  passed  in  a  number  of  states  which  declare  bills  of  lading 
to  be  negotiable.^ '^^  But  bills  of  lading  are  regarded  as  so  much 
cotton,  grain,  iron,  or  other  articles  of  merchandise.  The  merchan- 
dise is  very  often  pledged  by  transfer  of  the  bills  which  cover  it 
They  are,  in  commerce,  a  very  different  thing  from  bills  of  exchange 
and  promissory  notes,  answering  a  different  purpose  and  performing 
different  functions.  It  cannot  be,  therefore,  that  statutes  which 
make  them  negotiable  by  indorsement  and  delivery,  or  negotiable  in 
the  same  manner  as  bills  of  exchange  and  promissory  notes  are  nego- 
tiable, intend  to  change  totally  their  character,  put  them,  in  all 
respects,  on  the  footing  of  instruments  which  are  the  representatives 
of  money,  and  charge  the  negotiation  of  them  with  all  the  conse- 
quences which  usually  attend  or  follow  the  negotiation  of  bills  and 
notes.  Some  of  these  consequences  would  be  very  strange,  if  not 
impossible;  such  as  the  liability  of  indorsers,  the  duty  of  demand  ad 
diem,  notice  of  nondelivery  by  the  carrier,  etc.,  or  the  loss  of  the 
owner's  property  by  the  fraudulent  assignment  of  a  thief.^** 

226  Gibson  V.  Stevens,  8  How.  (U.  S.)  384;  Lee  v.  Bowen,  5  Biss.  (U.  8.) 
154,  Fed.  Gas.  No.  8,183;  Farmers'  &  Mechanics'  Nat.  Bank  of  Buffalo  v. 
Logan,  74  N.  Y.  568;  First  Nat.  Bank  of  Cincinnati  v.  Kelly,  57  N.  Y.  34; 
Dows  V.  Kidder,  84  N.  Y.  121;  Comer  v.  Cunningham,  77  N.  Y.  391;  Paddou 
V.  Taylor,  44  N.  Y.  371;  First  Nat.  Bank  of  Cairo  v.  Crocker,  111  Mass.  163; 
Forbes  v.  Boston  &  L.  R.  Co.,  133  Mass.  154;  First  Nat.  Bank  of  Chicago  v. 
Bayley,  115  Mass.  228;  De  Wolf  v.  Gardner,  12  Cush.  (Mass.)  lU;  Holmes  v. 
Bailey,  92  Pa.  St.  57;  Emery  v.  Bank,  25  Ohio  St.  360,  366. 

228  Stollenwerck  v.  Thacher,  115  Mass.  224;  Pease  v.  Gloahec,  L.  li.  1  P. 
O.  219;   Gurney  v.  Behrend,  3  El.  &  Bl.  622. 

227  California,  Civ.  Code,  §§  2127,  2128.  Maryland,  Rev.  Code  1S7S.  p. 
298,  art.  35,  §  12;  Acts  1876,  c.  262.  Minnesota,  Gen.  St.  1878,  c.  124,  S 
17;  Gen.  St.  1894,  §  7649.  Missouri,  Rev.  St.  1879,  p.  88,  §§  558,  559.  New 
York,  3  Rev.  St.  (7th  Ed.)  1892,  pp.  2259,  2260.  Pennsylvania,  Brightly,  Purd. 
Dig.  1873,  p.  114.    Wisconsin,  Rev.  St.  1878,  p.  1011,  §  4194;   Id.  p.  1049,  §  4425. 

22  8  Shaw  V.  Railroad  Co.,  101  U.  S.  557;  Tiedeman  v.  Knox,  53  Md.  612, 
614. 


iiH  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

When  a  bill  of  lading  is  attached  to  a  time  draft  drawn  on  the 
consignee,  it  is  regarded  as  security  for  the  acceptance  of  the  draft, 
and  not  for  its  payment.^^^  The  consignee  is  therefore  entitled  to 
the  delivery  of  the  bill  of  lading  when  he  accepts  the  draft.^^°  When 
the  consignor  of  goods  takes  a  bill  of  lading,  which  he  pledges,  the 
pledgee  acquires  rights  superior  to  those  of  the  consignee.- ^^  On 
the  other  hand,  when  the  consignee  has  the  bill  of  lading,  and 
pledges  it,  the  consignor  cannot  subsequently  stop  the  goods  in  tran- 
situ without  paying  the  pledgee  the  amount  secured  to  him."*  If 
a  bill  of  lading  consists  of  more  than  one  part,  a  pledgee  advancing 
money  on  one  of  the  set  has  a  better  title  than  a  subsequent  pur- 
chaser taking  the  goods  or  a  duplicate  bill.^^*  But  the  carrier  is 
justified  in  delivering  the  goods  on  the  production  of  any  of  the 
parts  of  the  bill,  though  another  part  has  been  previously  pledged.*^* 
Same —  Warehouse  Receipts. 

Warehouse  receipts  are  not  negotiable,  in  the  legal  sense,'  so  as 
to  enable  the  person  holding  tbem  to  transfer  a  greater  right  or  title 
to  the  property  mentioned  in  them  than  he  himself  had.  Their 
only  "officeis  to  stand  in  the  place  of  the  property  itself,  for  the  con- 
venience of  the  parties  interested  in  the  property.  A  pledge  of  such 
receipts  has  the  same  effect  as  a  pledge  of  the  property. — no  greater 
and  no  less.**"     And  although  warehouse  receipts  are  made  nego- 

«29  Dows  v.  National  Exchange  Bank,  91  U.  S.  (518,  630;  National  Bank  of 
Commerce  v.  Merchants'  Nat.  Bank,  91  U.  S.  92;  Mears  v.  Waples,  4  Houst. 
(Del.)  G2;   Landfear  v.  Blossman,  1  La.  Ann.  148. 

280  National  Bank  of  (Commerce  v.  Merchants'  Bank,  91  U.  S.  92;  Schuchardt 
V.  Hall,  36  Md.  590;  Security  Bank  of  Minnesota  v.  Luttgen,  29  Minn.  363, 
13  N.  W.  151;  Marine  Bank  of  Chicago  v.  Wright,  48  N.  Y.  1;  Cayuga 
County  Nat.  Bank  v.  Daniels,  47  N.  Y.  631. 

881  Richardson  v.  Nathan,  167  Pa.  St.  513,  31  Atl.  740;  Hieskell  v.  Farmers' 
&  Mechanics'  Nat.  Bank,  89  Fa.  St.  155;  Bank  of  Rochester  v.  Jones,  4  N.  Y. 
497,  501. 

2S2  Kemp  V.  Faik,  7  App.  Cas.  573;   Spalding  v.  Ruding,  6  Beav!  378. 

23  8  Skilling  V.  Bellman,  6  Mo.  App.  76.  And  see  Hieskell  v.  Farmers'  & 
Mechanics'  Nat.  Bank.  89  Pa.  St.  155;  Meyerstein  v.  Barber,  L.  R.  2  C.  P. 
38;    Id.,  L.  R.  4  H.  L.  317,  331. 

234  Glyn,  Mills,  Currie  &  Co.  v.  East  &  West  India  Dock  Co.,  7  App.  Cas. 
691. 

230  Burton  v.  Curyea,  40  111.  320;  Western  Union  R.  Co.  v.  Wagner,  65  111. 
i97;   Second  Nat.  Bank  v.  Walbrldge,  19  Ohio  St.  419;    Gibson  v.  Chillicothe 


§    34]         RIGHTS   AND  LIABILITIES  OF  PLEDGEE  BEFORE  DEFAULT.  149 

tiable  by  statute  in  some  states,"'  the  pledgee  of  a  receipt  takes  no 
better  title,  and  stands  in  no  better  attitude,  tiianjf  the  {^oods  thcin- 
selves  were  held  by  him.  Such  receipts  are  in  lieu  of  and  repre- 
sent the  property  to  which  they  refer,  and  their  ncj^ul lability  serves 
only  to  cut  off  any  defense  the  warehouse  keeper  may  have."^  Any 
other  construction  would  enable  any  one,  fraudulently  depositiuf^ 
the  goods  of  another,  to  pass  title,  as  against  the  true  owner,  by 
obtaining  a  warehouse  receipt  in  his  own  name.^*^  A  pledgee  of  a 
warehouse  receipt  can  hold  the  goods  against  the  owner  in  the  same 
cases  in  which  a  pledgee  of  the  goods  themselves  could.-*"  A  ware- 
Branch  of  State  Bank  of  Ohio,  11  Ohio  St.  311;  Newcomb  v.  Cabell,  10  Bush 
(Ky.)  460;  Stewart  v.  Phoenix  Ins.  Co.,  9  Lea  (Tenn.)  104;  Horr  v.  Baiker, 
8  Gal.  G03;  St  Louis  Nat.  Bank  v.  Ross,  9  Mo.  App.  399;  Fourth  Nat.  Bank 
V.  St.  Louis  Cotton  Compress  Co.,  11  Mo.  App.  333;  Gibson  v.  Stevens,  8  How. 
(U.  S.)  884.  Under  the  New  York  factors'  act  (Laws  1S30,  c.  179),  one  who 
IWufeM^faoney  on  the  security  of  negotiable  warehouse  receipts  for  goods  ac- 
quires a  lien  on  such  goods  superior  to  that  of  bankers  who  have  advanced 
money  to  the  consignors  of  the  goods  upon  an  agreement  that  the  same  shall 
be  sold  for  such  bankers'  account,  and  the  proceeds  specially  remitted,  but 
who  have  placed  the  bills  of  lading  in  the  consignees'  hands,  enabling  them 
to  deal  with  the  goods  as  their  own.  Blydenstein  v.  New  York  Security  & 
Trust  Co.  (0.  C.  A.)  67  F.  469.  The  givmg  of  nonnegotiable  warehouse  re- 
ceipts by  a  vendee  of  whisky  stored  In  a  bonded  warehouse  to  a  creditor  of 
such  vendee,  to  secure  a  pre-existing  debt,  operates  only  as  a  pledge  of  such 
whisky,  and  does  not  affect  an  existing  vendor's  lien  on  the  whisky.  Vogel- 
sang's Adm'r  v.  Fisher  (Mo.  Sup.)  31  S.  W.  13. 

286  California,  Codes  &  St,  Supp.  1880,  §  6855;  Connecticut,  Pub.  Acts  1S78, 
e.  40,  §  6;  Ulinols,  Rev.  St.  1889,  c.  114,  §  142;  Indiana,  Acts  1879,  p.  232,  §  3,  and 
Rev.  St.  1881,  §  6543  (Rev.  St.  1894,  §  8722);  Iowa,  Rev.  Code  ISStJ.  p.  582.  S 
2171;  Kansas,  Laws  1879,  c.  23,  §  154;  Kentucky,  Act  March  6,  1869,  §  3; 
Maine,  Laws  1878,  c.  38;  Massachusetts,  Acts  1878,  c.  93,  §  1,  and  Pub.  St  1882. 
c.  72,  §  6;  Maryland,  Rev.  Code  1878,  p.  298,  §  14;  New  York,  Rev.  St.  1875, 
p.  230,  §  6,  and  Rev.  St  1882  (7th  Ed.)  p.  2260.  Wisconsin,  Rev.  St  1878,  c.  78, 
S§  1676,  1678. 

237  First  Nat  Bank  of  Louisville  v.  Boyce,  78  Ky.  42;  Greenba'um  v.  Me- 
gibben,  10  Bush  (Ky.)  419;  Second  Nat  Bank  of  Toledo  v.  Walbridge,  19 
Ohio  St  419. 

28  8  First  Nat  Bank  of  Louisville  v.  Boyce,  78  Ky.  42,  56. 

28  9  As  where  a  fraudulent  purchaser  has  taken  a  warehouse  receipt  for 
the  goods  and  transferred  it  Chicago  Dock  Co.  v.  Foster,  48  111.  507;  Ditson 
V.  Randall,  33  Me.  202;  Fourth  Nat.  Bank  v.  St  Louis  Cotton  Compress  Co., 
11  Mo.  App.  333;  Western  Union  R.  Co.  v.  Wagner,  65  111.  197;  Hoyt  v.  Baker, 


150  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

houseman  who  has  fraudulently  issued  a  receipt  for  goods  not  in 
his  possession  is  estopped  to  deny  the  receipt.^*"  But  if  a  receipt 
is  issued  by  mistake,  the  warehouseman  is  not  estopped.'**  Nor 
does  an  estoppel  arise  against  him,  by  reason  of  statements  in  his 
receipt  as  to  matters  not  within  his  knowledge;  for  instance,  as  to 
the  grade  of  wheat  stored  with  him.^*^  When  the  agent  of  a  ware- 
houseman issues  receipts  for  goods  not  in  fact  received,  not  having 
authority  to  do  so  from  his  principal,  the  latter  is  not  bound  there- 
by.2*8 

Special  Property  of  Pledgee — Right  to  Possession — Right  of  Action. 

A  pledgee  acquires,  in  the  chattels  pledged,  a  special  property, 
commensurate  with  his  rights  as  pledgee.  The  most  important  ele- 
ment of  this  special  property  is  his  right  to  hold  possession.^**  This 
right,  on  the  death  of  the  pledgee,  passes  to  his  personal  representa- 
tives, in  the  absence  of  any  other  disposition.^*'  The  effect  of  a 
surrender  of  possession  to  the  pledgor  will  be  hereafter  considered 
both  as  to  the  pledgor  himself  and  as  to  third  persons.^ *^  If  the 
possession  of  the  pledgee  is  tortiously  interfered  with  by  the  pledgor 

15  Abb.  Prac.  (N.  S.;    N.  Y.)  405;    McCombie  v.  Spader,  1  Hun  (N.  Y.)  193; 
^Paddon  v.  Taylor,  44  N.  Y.  371;    Barnard  v.  Campbell,  55  N.  Y.  456.     See 
ante,  p.  135. 

2  40  Griswold  v.  Haven,  25  N.  Y.  595;  Stewart  v.  Phcenlx  Ins.  Co.,  9  Lea 
(Tenn.)  104. 

2*1  Second  Nat.  Bank  of  Toledo  v.  Walbridge,  19  Ohio  St.  419;  Hale  v.  Mil- 
waukee Dock  Co.,  29  Wis.  4S2. 

24  2  Robson  V.  Swart,  14  Minn.  371  (Gil.  287).  And  see  Hale  v.  Milwaukee 
Doct  Co.,  29  Wis.  482. 

«43  Peoples'  Bank  v.  Gayley,  92  Pa.  St.  518. 

244  Coleman  v.  Sbelton,  2  McCord's  Ch.  (S.  C.)  126;  Yeatman  v.  Savings 
Inst,  95  U.  S.  764;  Mitchell  v.  Brown,  6  Cold.  (Tenn.)  505;  Printup  v.  John- 
son, 19  Ga.  73;  Kittera's  Estate,  17  Pa.  St,  416.  A  pledgee  may  hold  more 
than  one  security  as  collateral  for  the  same  debt.  Union  Bank  of  George- 
town v.  Laird,  2  Wheat.  390. 

240  Henry  v.  Eddy,  34  111.  508.  An  assignmeui  of  his  interest  in  a  mort- 
gage and  notes  pledged  as  security  for  a  loan,  by  the  executor  of  the  pledgee, 
is  valid,  and  not  a  fraud  on  the  pledgor,  though  payment  is  not  first  de- 
manded of  the  pledgor,  nor  notice  given  him  that  such  assignment  is  to  be 
made,  as  it  does  not  affect  his  position  or  right  to  redeem.  Drake  v.  Cloonan, 
99  Mich.  121,  57  N.  W.  1098. 

24  8  Post,  p.  171. 


§    34]  RIGHTS   AND  LIABILITIES   OP  PLEDGEE  BEFORE  DEFAULT.  151 

or  bj  a  stranger,  he  may  maintain  detinue  or  replevin  for  recovery 
of  his  possession,2<T  or  trover  for  the  conversion  of  the  property."' 
A  distinction  should  be  observed  between  trover  to  enforce  a  pledge 
against  the  general  owner,  or  one  converting  the  goods  by  his  direc- 
tion, and  the  like  action  against  a  stranger.  In  the  latter  case,  the 
pledgee  may  recover  the  full  value,  though  exceeding  his  lien,  and 
then  stand  as  trustee  for  the  pledgor  as  to  the  balance;'*"  but, 
when  the  action  is  against  the  pledgor  or  one  acting  under  him,  the 
pledgee  can  recover  only  according  to  his  special  interest,'^"  L  e.  the 
amount  of  his  debt. 

Right  to  Use  the  Pledge. 

Ordinarily,  and  in  the  absence  of  any  agreement  or  assent  by  the 
pledgor,  the  pledgee  has  no  right  to  use  the  thing  pledged,^"  and  a 
use  of  it  is  illegal.^"'^     But,  under  special  circumstances,  depending 

2*7  Noles  V.  Marable,  50  Ala.  366. 

2*8  United  States  Exp.  Co.  v.  Meints,  72  111.  293;  Tread  well  v.  Davis,  34 
Cal.  601;  Boeder  v.  Green  Tree  Brewery  Co.,  33  Mo.  App.  69;  Brownell  v. 
Hawkins,  4  Barb.  (N.  Y.)  491.  The  pledgee  of  a  promissory  note  may  main- 
tain an  action  against  a  pledgor  for  the  conversion  of  the  note,  where  the 
latter  has  obtained  the  note,  though  without  fraud,  under  an  agreement  thai 
he  is  to  return  It  or  another  note,  which  agreement  he  refuses  to  comply 
with.    Way  v.  Davidson,  12  Gray  (Mass.)  465. 

2*9  Adams  v.  O'Connor,  100  Mass.  515;  Ullman  v.  Barnard,  7  Gray  (Mass.) 
554;  Pomeroy  v.  Smith,  17  Picli.  (Mass.)  85;  Lyle  v.  Barker,  5  Bin.  (Pa.)  457; 
Baldwin  v.  Bradley,  69  111.  32;  Benjamin  v.  Stremple,  13  111.  466;  United 
States  Exp.  Co.  v.  Meints,  72  111.  293;  Treadwell  v.  Davis,  34  Cal.  601;  Soule 
v.  White,  14  Me.  436 

2  60  Treadwell  v.  Davis,  34  Cal.  601;  Lyle  v.  Barker,  5  Bin.  (Pa.)  4.j7,  460; 
Ingersoll  v.  Van  Bokkelin,  7  Cow.  (N.  Y.)  GSl;  Hays  v.  Riddle,  1  Sandf.  (N. 
Y.)  248;   Hurst  v.  Coley,  15  Fed.  645. 

281  By  the  civil  law  there  are  two  kinds  of  pledges,— the  pawn  and  anti- 
chresis. A  thing  is  said  to  be  pawned  when  a  movable  thing  is  given  as 
security.  The  antichresis  is  when  the  security  given  consists  in  immovables. 
Rev.  Civ.  Code  La.  1870,  tit.  20,  art.  3135.  in  the  antichresis  the  creditor 
acquires  the  right  of  reaping  the  fruits  or  other  revenues  of  the  Immovables 
to  him  given  in  pledge,  on  condition  of  deducting  annually  their  proceeds 
from  the  interest,  if  any  be  due  to  him,  and  afterwards  from  the  priucipui  of 
his  debt.  Rev.  Civ.  Code  La.  1870,  tit.  20,  art  8176;  Livingston's  Ei'i  t. 
Story,  11  Pet.  351. 

282  Stearns  v.  Marsh,  4  Denio  (N.  Y.)  227;  McArthur  v.  Howott,  72  IIL  353, 
860.    But  see  Thompson  v.  Patrick,  4  Watts  (Pa.)  414. 


162  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

somewhat  upon  the  nature  of  the  pledge,  and  in  all  cases  with  the 
assent  of  the  pledgor,  express  or  implied,  the  property  pledged  may 
be  used  bv  the  pledgee  in  any  way  consistent  with  the  general  own- 
erhip  and  the  ultimate  rights  of  the  pledgor.^ "^^  For  instance,  the 
pledgee  of  a  horse  must  give  it  a  necessary  amount  of  exercise,  and 
is  entitled  to  the  use  which  may  result  incidentally.  The  rule  as 
to  use  of  the  pledge  laid  down  in  Coggs  v,  Bernard,^"**  and  in  some 
of  the  books,  namely,  that  the  pledge  may  be  used  if  it  will  not  be 
injured  thereby,  is  clearly  erroneous,  because  it  is  said  that  the 
pledgee  uses  it  at  his  peril,  which  would  not  be  true  if  the  use  itself 
was  lawful. 

Profits  of  the  Pledge. 

A  pledgee  is  entitled  to  hold  the  profits  and  increase  of  the  pledge 
as  a  part  of  his  security,  but  they  are  held  in  trust — First,  to  apply 
any  fruits  or  proceeds  of  them  towards  the  payment  of  the  debt; 
and,  secondly,  if  the  debt  is  paid  in  full  from  other  funds,  to  restore 
the  property,  or  any  such  fruits  or  proceeds  thereof  as  may  have 
been  received,  to  the  pledgor,^°°  So,  where  cows  are  pledged,  the 
pledgee  would  be  required  to  account  for  any  profits  received  from 
their  milk.'"^  For  it  is  the  duty  of  a  pawnee,  at  common  law,  to 
render  a  due  account  of  all  the  income,  profits,  and  advantages  de- 
rived by  him  from  the  pledge,  in  all  cases  where  such  an  account  is 

2ts8  Lawrence  v.  Maxwell,  53  N.  Y.  19. 

SB*  "But  if  the  pawn  be  such  as  it  will  be  the  worse  for  using,  the  pawnee 
cannot  use  it,  as  clothes,  etc.;  but  if  it  be  such  as  will  be  never  the  worse, 
as  if  jewels  for  the  purpose  were  pawned  to  a  lady,  she  might  use  them. 
But  then  she  must  do  it  at  her  peril,  for  whereas  if  she  keeps  them  locked 
up  in  her  cabinet,  if  her  cabinet  should  be  broken  open,  and  the  jewels  taken 
from  thence,  she  would  be  excused;  if  she  wears  them  abroad,  and  is  there 
robbed  of  them,  she  will  be  answerable.  And  the  reason  is  because  the 
pawn  is  in  the  nature  of  a  deposit,  and  as  such  is  not  liable  to  be  used.  And 
to  this  effect  is  Owen,  123.  But  if  the  pawn  be  of  such  a  nature  as  the 
pawnee  Is  at  any  charge,  about  the  thing  pawned,  to  maintain  it,  as  a  horse, 
cow,  etc.,  then  the  pawnee  may  use  the  horse  in  a  reasonable  manner,  or 
milk  the  cow,  etc.,  in  recompense  for  the  meat"  Ckjggs  v.  Bernard,  2  Ld. 
Raym.  909,  916. 

2 BO  Felton  v.  Brooks,  4  Gush.  (Mass.)  203,  206;  Merrifield  v.  Baker,  9  Allen 
(Mass.)  29. 

168  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  917. 


§    34]  RIGHTS   AND   LIABILITIES   OF   PLEDGEE  BEFORE   DEFAULT.  153 

within  the  scope  of  the  bailment.  If,  for  instance,  the  pawn  is  a 
slave,  the  profits  of  his  labor  are  to  be  accounted  for.'"  And  some 
authorities  think  the  pledgee  is  liable  for  all  the  profits  he  might 
have  received,  but  for  his  own  negligence.  And  this  would,  doubt- 
less, be  true  in  all  cases  where  there  is  an  obligation  to  employ  the 
pledge  at  a  profit.  As,  if  there  is  a  pledge  of  money,  and  it  is  agreed 
that  it  shall  be  let  out  at  interest  by  the  pledgee,  and  he  neglects  his 
duty.  If  he  lets  it  out,  in  the  absence  of  an  agreement,  and  receives 
profit,  he  must  account  therefor.'"^®  But  when  money  is  deposited 
as  a  pledge,  while  the  pledgee  holds  it  as  such,  he  is  not  charge- 
able with  any  interest  upon  it,  to  be  paid  by  himself;  for  it  was 
not  a  debt  which  the  pledgor  forbore  to  him,  so  as  to  be  entitled 
to  payment  for  the  forbearance.  Being  a  pledgee,  he  is  subject  to 
the  liabilities  of  a  pledgee,  but  not  to  those  of  a  debtor.^"' 

Same — Stock — Right  to  Vote. 

The  pledgee  can  collect  dividends  on  stock,^®**  and  interest  cou- 
pons on  bonds, '^^^  but  he  is  required  to  account  for  these  as  for 
other  profits.^*-*  A  pledgee  of  stock  may  vote  it,  if  it  stands  in  his 
name.''**  In  several  states  there  are  express  statutory  enactments 
providing  that  a  pledgee  may  vote  on  stock  held  by  him. 


284 


26T  Geron  v.  Geron,  15  Ala.  558;  Houton  v.  Holliday,  2  Murph.  (N.  C.)  Ill, 
Woodard  v.  Fitzpatrick,  9  Dana  (Ky.)  117,  120. 

20  8Gilson  V.  Martin,  49  Vt.  471;  Hunsaker  v.  Sturgis,  29  CaL  142;  Merrl- 
field  V.  Baker,  9  Allen  (Mass.)  29. 

2  69  Story,  Ballm.  §  839. 

260  Hunsaker  v.  Sturgis,  29  Gal.  142;  Hagar  v.  Union  Nat.  Bank,  63  Me. 
500;  Herrman  v.  Maxwell,  47  N.  Y.  Super.  Ct  347;  Merchants'  Nat.  Bank  v. 
Richards,  6  Mo.  App.  454,  404;  Gaty  v.  Holliday,  8  Mo.  App.  118;  Kellogg  v. 
Stockwell,  75  111.  68,  71;  Fairbanks  v.  Merchants'  Nat.  Bank  of  Chicago,  30 
lU.  App.  28. 

261  Androscoggin  R.  Co.  v.  Auburn  Bank,  48  Me.  335. 
26  2  See  cases  cited  in  the  last  two  notes. 

288  Ex  parte  Willcocks,  7  Cow.  (N.  Y.)  402;  In  re  Barker,  6  Wend.  (N.  Y.) 
509;  Becher  v.  Wells  Flouring  Mill  Co.,  1  Fed.  276. 

264  Indiana,  Rev.  St.  1881,  §  3009;  Maine,  Acts  1872,  c.  69;  Maryland,  Rev. 
Code  1878,  p.  816,  §  13;  Missouri,  Rev.  St  1879,  §  714;  Nevada,  2  Comp.  Laws 
1873,  §  3400;  New  Hampshire,  Gen.  Laws  1878,  p.  355,  §  12;  Idaho,  Rev. 
Laws  1875,  p.  622,  §  12;  New  Mexico,  Gen.  Laws  1882,  p.  206,  §  12;  Washing- 
ton, Code  1881,  i  2432;    Wyoming,  Comp.  Laws  1876,  c.  84,  §  17. 


154  BAILMENTS    FOR    MUTUAL   BENEFIT PLEDGE.  [Ch.   4 

Expenses  of  the  Pledge. 

The  pledgee  Is  entitled  to  be  reimbursed  for  expenses  incnrrpd  hj 
him  which  were  necessary  in  keeping  and  caring  for  thp  pledged 
property. ^ ^ "*  This  includes  the  premiums  on  an  insurance  policy 
held  in  pledge,^""  and  money  paid  in  removiny  the  lien  of  an  incum- 
brance  superior  to  the  lien  of  the  pledge.''°^ 

Same — Assessments  on  Stock. 

So,  too,  the  pledgee  can  charge  the  pledgor  with  any  assessments 
on  stock  held  by  him  which  he  has  been  compelled  to  pay.^^*  Upon 
the  question  whether  a  pledgee  of  stock  becomes  liable  thereon  for 
unpaid  subscriptions,  the  authorities  may  be  divided  into  three 
classes:  First.  Where  the  pledgee  of  stock  has  taken  a  transfer  of 
the  stock  directly  to  himself,  and  has  had  such  transfer  registered 
on  the  books  of  the  corporation.  It  has  been  held  that,  in  such 
case,  the  pledgee  is  liable  for  assessments.^^^  Second.  Where  the 
pledgee  has  sought  to  relieve  himself  by  making  a  transfer  of  the 
stock  to  an  irresponsible  third  person.  In  such  case  he  is  liable.^ '"^ 
Third.  Where  no  transfer  is  made  to  the  pledgee,  and  his  name  is 

886  Hills  V.  Smith,  28  N.  H.  369;  Staxrett  v.  Barber,  20  Me.  457;  Hendricks 
V.  Robinson,  2  Johns.  Ch.  (N.  Y.)  283;  Fagan  v.  Thompson,  38  Fed.  467. 
One  of  two  joint  pledgees  cannot  recover  from  the  other  compensation  for 
caring  for  and  selling  the  pledged  property,  where  there  was  no  agreement 
therefor.  Central  Trust  Co.  v.  New  York  Equipment  Co.,  87  Hun,  421,  34 
N.  Y.  Supp.  849. 

288  Raley  v.  Ross,  59  Ga.  862. 

287  Furness  v.  Bank,  147  111.  570,  85  N.  E.  624.  One  who  takes  notes  as 
collateral  security  for  a  debt  is  entitled,  as  against  the  owner  thereof,  to  be 
allowed  the  cost  of  realizing,  including  a  reasonable  attorney's  fee.  Gregory 
V.  Pike,  15  C.  C.  A.  33,  67  Fed.  837.  But,  for  a  case  in  which  attorney's  fees 
were  not  allowed  the  pledgee  In  defending  an  action  against  the  real  owner, 
see  Work  v.  Tibbits,  87  Hun,  352,  34  N.  Y.  Supp.  308. 

288  McCalla  v.  Clark,  55  Ga.  53. 

269  National  Bank  v.  Case,  99  U.  S.  628;  Pullman  v.  Upton,  96'  U.  S.  328; 
Johnson  v.  Underbill,  52  N.  Y.  203;  In  re  Empire  City  Bank,  18  N.  Y.  199; 
Adderly  v.  Storm,  6  Hill  (N.  Y.)  624;  Holyoke  Bank  v.  Burnham,  11  Cush. 
(Mass.)  183;  Crease  v.  Babcock,  10  Mete.  (Mass.)  525;  Hale  v.  Walker,  31 
Iowa,  344;  Magruder  v.  Colston,  44  Md.  349;  Wheelock  v.  Kost,  77  111.  296; 
Aultman's  Appeal,  98  Pa.  St.  505. 

270  National  Bank  v.  Case,  99  U.  S.  628;  Bowden  v.  Johnson,  107  U.  S.  251, 
2  Sup.  Ct.  246;    Davis  v.  Stevens,  17  Blatchf.  259,  Fed.  Cas.  No.  3,653. 


§  34]       raGUTs  and  liabihties  of  plkdgek  before  default.  I'i5 

not  registered  as  owner,  but  the  owner  of  the  stock  puts  it  into  the 
hands  of  a  third  person  to  hold  for  the  benefit  of  the  pledgor  and 
pledgee.  In  such  case  the  pledgee  has  never  been  held  respnusl- 
ble."^  Statutes  in  a  number  of  stales  exempt  the  pledgee  from 
liability  on  stock  held  by  him  as  collateral, ^^^  and  such  a  statute 
has  been  held  to  extend  the  exemption  to  one  who  was  a  pledgee 
from  the  corporation  itself."' 

Care  Required  of  the  Pledgee. 

A  pledge  is  for  the  mutual  benefit  of  both  parties,  and  in  such  a 
case  the  bailee  is  bound  to  exercise  ordinary  care;  ''^*  and,  in  deter- 
mining what  constitutes  such  care,  the  nature  and  value  of  the 
property,  and  the  means  of  protection  possessed  by  the  pledgee,  and 
the  relation  of  the  parties,  and  other  circumstances,  must  be  consid 
ered.'^^''  The  general  question  of  the  care  required  in  a  bailment 
for  mutual  benefit  has  already  been  sufficiently  discussed."* 

«Ti  Anderson  v.  Philadelphia  Warehouse  Co.,  4  Fed.  130. 

27  2  Colorado,  Gen.  Laws  1ST7,  p.  150,  §  210;  Dakota,  Laws  1879,  p.  14,  c.  9; 
Indiana,  St.  1876,  p.  371,  §§  8,  9,  and  Rev.  St.  1881,  §  3008  (Rev.  St.  1894,  § 
8431);  Maryland,  Rev.  Code  1878,  p.  323,  §  61;  Massachusetts,  Pub.  St  1882, 
c.  105,  §  25;  Missouri,  1  Rev.  St.  1879,  §§  934,  935;  New  York,  2  Rev.  St.  1881 
(7th  Ed.)  p.  1548,  §  11;  Ohio,  Rev.  St.  1880,  §  3259;  Washington,  Code  IS'Jl, 
§  1512;  Wisconsin,  Rev.  St.  1878,  p.  532,  §  1827;  Wyoming,  Comp.  Laws  1870. 
c.  84,  §§  16,  17.  And  see  Beal  v.  Essex  Sav.  Bank,  15  C.  C.  A.  128,  67  Fed. 
816;  Pauly  v.  State  Loan  &  Trust  Co.,  7  C.  0,  A.  422,  58  Fed.  066;  Borland  v. 
Nevada  Bank,  99  Cal.  89,  33  Pac.  737. 

"78  Burgess  v.  Seligman,  2  Sup.  Ct.  10;  Matthews  v.  Albert,  24  Md.  527. 
But  see  Griswold  v.  Seligman,  72  Mo.  110;   Fisher  v.  Seligman,  75  Mo.  13. 

274  Commercial  Bank  v.  Martin,  1  La.  Ann.  344;  Cooper  v.  Simpson.  41 
Minn.  46,  42  N.  W.  601;  Girard  Fire  &  Marine  Ins.  Co.  v.  Marr,  46  Pa.  St. 
604;  Erie  Bank  v.  Smith,  3  Brewst.  (Pa.)  9;  Third  Nat.  Bank  v.  Boyd,  44 
Md.  47;  St.  Losky  v.  Davidson,  6  Cal.  643;  Scott  v.  Crews,  2  S.  C.  522;  Petty 
V.  Overall,  42  Ala.  145;  Wells  v.  Wells,  53  Vt.  1;  Cutting  v.  Marlor,  78  N.  Y. 
454;  Ouderkirk  v.  Central  Nat.  Bank,  119  N.  Y.  263,  23  N.  E.  875;  ilollister 
V.  Central  Nat  Bank,  119  N.  Y.  634,  23  N.  E.  878. 

27B  Damon  v.  Waldteufel,  99  Cal.  234,  33  Pac.  903;  Gutting  v.  Marlor.  78 
N.  Y.  454.  Where  a  life  insurance  policy  is  assigned  to  secure  the  assignee 
against  a  contingent  liability,  dependent  on  the  life  of  the  assured,  and 
such  assignee  is  paid  by  a  third  person  a  sum  sufficient  to  pay  the  premiums 
while  such  contingency  exists,  but  he  does  not  agree  to  pay  them,  he  is  not 

27  6  See  ante,  pp.  10,  .50,  87. 


156  BAILMENTS    FOR    MUTUAL    BENEFIT — 'PLEDGE.  [Ch.   4 

Same — Collection  of  Negotiable  Paper. 

But  a  pledgee  holding  negotiable  paper  as  collateral  security  is 
required  to  use  a  different  kind  of  diligence  from  that  required  of 
one  holding  merchandise  or  other  corporeal  property,  and  yet  the 
diligence  in  each  case  is  only  such  as  is  appropriate  to  the  nature  of 
the  property.^^^  If  the  property  be  precious  stones,  safe-keeping  is 
all  that  is  required.  If  it  be  grain,  it  must  be  properly  stored  and 
protected  from  all  injury.  The  diligence  required  of  the  holder  of 
promissory  notes  or  other  securities  for  the  payment  of  money  has 
reference  to  the  danger  that  the  parties  liable  on  them  may  become 
insolvent  and  unable  to  pay.  A  prudent  business  man  will  collect 
such  obligations  when  they  are  due,  or  will  endeavor  to  enforce  them 
by  suit.  If,  therefore,  a  pledgee  neglects  to  enforce  the  collection 
of  such  securities  held  in  pledge,  and  delays  till  me  parties  liable 
become  insolvent,  he  is  as  much  guilty  of  negligence  as  if  he  had 
suffered  grain  held  in  pledge  to  be  destroyed  by  dampness  or  heat, 
for  lack  of  proper  storage."®     Accordingly,  if  the  pledge  consists  of 

liable  in  damages  to  the  assured's  estate  for  permitting  the  policy  to  lapse  by 
failure  to  apply  the  money  received  to  the  payment  of  such  premiums.  Kil- 
loran  v.  Sweet,  25  N.  Y.  Supp.  295,  72  Hun,  194.  Where  a  creditor  holds  as 
security  logs,  which  he  is  to  manufacture  into  lumber,  sell  the  lumber,  and 
apply  the  net  proceeds  on  the  debt,  he  must  use  reasonable  diligence  to  se- 
cure the  best  net  results,  account  for  tlie  proceeds,  and  show  what  expendi- 
tures were  necessarily  or  reasonably  incurred.  Second  Nat.  Bank  v.  Sproat 
(Minn.)  56  N.  W.  254.  If  a  theft  of  the  pawn  was  occasioned  by  his  negli- 
gence, he  is  responsible;  If  without  any  negligence,  he  is  discharged  from 
liability.  Petty  v.  Overall,  42  Ala.  145.  A  pledgee  is  responsible,  also,  for 
the  negligence  of  his  servants  as  well  as  his  own  negligence.  But  he  would 
not  be  responsible  for  the  negligence  of  an  attorney  employed  to  collect 
negotiable  instruments  held  in  pledge  if  he  used  reasonable  care  in  selecting 
the  attorney.     Commercial  Bank  v.  Martin,  1  La.  Ann.  344. 

2T7  A  creditor  to  whom  claims  are  transfeiTed  as  collateral  security  is 
bound  to  use  ordinary  diligence  In  collecting  them,  and  is  liable  for  loss  re- 
sulting from  his  failure  to  do  so;  but,  if  the  transfer  merely  authorizes  such 
creditor  to  receive  the  pi'oceeds  of  the  claims  when  collected,  and  apply  them 
to  the  payment  of  his  debt,  he  Is  not  bound  to  prosecute  their  collection. 
Miller  v.  Gettysburg  Bank,  8  Watts  (Pa.)  192. 

3T8  Hazard  v.  Wells,  2  Abb.  N.  C.  (N.  Y.)  444;  Barrow  v.  Rhinelander,  3 
Johns.  Ch.  (N.  Y.)  614;  Muirhead  v.  Kirkpatrick,  21  Pa.  St.  237;  Bank  of 
U.  S.  V.  Peabody,  20  Pa.  St.  454;  Sellers  v.  Jones,  22  Pa.  St.  423;  Lyon  v. 
Huntingdon  Bank,  12  Serg.  .St  K.  (Pa.)  61;   Lamberton  v.  Windom,  12  Minn. 


§   34]  RIGHTS   AND    LIABILITIES  OF  PLEDGEB  BEFORE   DEFAULT.  157 

Indorsed  negotiable  paper,  thS  pledgee  mnat  prpspnt  It  for  pnyT^pni^ 
at  maturitj.  and,  if  it  is  not  paid,  muRt  givp  notice  to  charge  the 
indorsers.  or^  if  loss  ensji^a^he  will  be  liable  to  make  it  good."" 
However,  as  against  the  pledgor  himself,  a  pledgee  is  not  held  to 
such  strict  rules  in  regard  to  the  presentation  at  maturity  of  a  note 
taken  as  collateral  security  and  notice  of  nonpayment  to  the  pledgor. 
The  note  is  not  received,  although  indorsed  by  the  pledgor,  upon  the 
condition  that  the  pledgee  would  exercise  such  diligence.  It  does 
not  represent  the  original  debt,  and,  to  hold  the  pledgor,  it  is  not 
necessary  that  the  pledgee  should  regularly  proceed  to  have  the  note 
presented  and  protested.  It  was  not  a  satisfaction  or  extinguish- 
ment of  the  original  debt,  and  a  failure  to  give  notice  will  not,  nec- 
essarily, defeat  a  recovery  on  the  pledge  debt.^^°  The  pledgee  wijl 
be  liable  for  ne^lectint^  ^gj^^  ^^^  collateral.m  jiut,  whi^iLa^iLudent 
mail  would  do  it,  if  any  loss  results  from  the  ripgipf^t^^^     In  such 

232  (Gil.  151);  Noland  v.  Clark,  10  B.  Mon.  (Kj.)  239;  Roberts  v.  Thompson. 
14  Ohio  St.  1;   Reeves  v.  Plough,  41  Ind.  204. 

2T9  Swift  v.  Tyson,  16  Pet.  1,  1  Am.  Lead.  Cas.  Eq.  411,  423,  note;  Smith  v. 
MlUer,  43  N.  Y.  171;  Wheeler  v.  Newbould  10  N.  Y.  392;  McLughan  v. 
Bovard,  4  Watts  (Pa.)  308;  Sellers  v.  Jones,  22  Pa.  St.  423;  M airhead  v. 
Kirkpatrick,  21  Pa.  St.  237;  Fetterton  v.  Roope,  2  Lea  (Tenn.)  215;  Alexan- 
dria, L.  &  H.  R.  Co.  V.  Burke,  22  Grat.  (Va.)  254;  Foote  v.  Brown,  2  McLean, 
369,  Fed.  Cas.  No.  4,909;  Lea  v.  Baldwin,  10  Ga.  208.  And  see  GoodaJl  v. 
Richardson,  14  N.  H.  567. 

280  W^estphal  v.  Ludlow,  2  McCrary,  505,  6  Fed.  348.  Where  a  note  is  de- 
posited as  collateral  security  for  an  existing  debt,  and  for  collection,  It  falls 
within  the  law  of  agency,  and  not  within  the  strict  rules  of  commercial  law 
applicable  to  negotiable  paper,  so  that  the  agent  Is  bound  only  to  use  due 
diligence  to  collect  the  same.  Lawrence  v.  MeCalmont,  2  How.  (U.  S.)  420; 
Hamilton  v.  Cunningham,  2  Brock.  350,  Fed.  Cas.  No.  5,978;  Westphal  v. 
Ludlow,  6  Fed.  348.  If  the  holder  of  a  bill  as  collateral  refuses  to  return  It. 
or  to  make  any  effort  to  collect  it,  he  is  liable  for  the  loss  resulting  from  his 
negligence.  Chllds  v.  Corp,  1  Paine,  285,  Fed.  Cas.  No.  2,677;  Allen  v.  King, 
Id.  226;   Roberts  v.  Thompson,  14  Ohio  St.  1. 

2  81  Ex  parte  Mure,  2  Cox,  Ch.  63;  Williams  v.  Price,  1  Sim.  &  S.  5S1;  Wake- 
man  V.  Gowdy,  10  Bosw.  (N.  Y.)  208;  Hoard  v.  Garner,  10  N.  Y.  2G1;  Lj-on  v. 
Huntingdon  Bank,  12  Serg.  &  R.  (Pa.)  61;  Lamberton  v.  Windom.  12  Minn. 
232  (Gil.  151);  Slevin  v.  Morril,  4  Ind.  425,  426;  Whitin  v.  Paul,  13  R.  I.  40. 
But  see  1  Am.  Lead.  Cas.  404.  The  same  rule  applies  to  securities,  not 
negotiable,  held  as  collateral;  for  Instance,  a  judgment.  Hanna  v.  Holton,  78 
Pa,  St  334.     If  a  pledgee,  without  the  consent  of  the  debtor,  renews  or  ex- 


158  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

suit  the  pledgee  collects  the  full  amount  of  the  instrument,^ *^  and 
holds  any  balance,  over  and  above  the  amount  secured  to  him,  for 
the  pledgor,  unless  there  were  equities  existing  against  the  pledgor, 
in  which  case  the  pledgee  can  collect  only  the  amount  due  him.^®' 
Where  there  is  danger  of  loss  the  pledgee  should  proceed  to  collect 
the  collateral,  though  the  pledge  debt  is  not  due.''^*  He  cannot 
compromise  without  the  pledgor's  consent.^*" 

Redelivery  of  Pledge. 

When  the  pledge  is  redeemed,  it  is  the  pledgee's  duty  to  redeliver 
the  property  pledged,^®*  together  with  all  its  increase  and  profits.^*^ 

tends  a  note  pledged  as  collateral,  or  surrenders  such  note  and  takes  new 
security,  he  must  account  to  his  debtor  as  if  he  had  collected  it  in  full. 
Haas  V.  Bank  of  Commerce,  60  N.  W.  85,  41  Neb.  754. 

282  Xo  demand  by  the  pledgee  on  the  maker  is  necessary  in  such  case  to 
enable  him  to  sue.     White  v.  Phelps,  14  Minn.  27  (Gil.  21). 

2  88  Williams  v.  Smith,  2  Hill  (N.  Y.)  801;  City  Bank  v.  Taylor,  60  Iowa, 
66,  14  N.  W.  128;  Steere  v.  Benson,  2  111.  App.  560;  Valette  v.  Mason,  1  Ind. 
89;  Mayo  v.  Moore,  28  111.  428;  Ehrler  v.  Worthen,  47  111.  App.  550;  Barmby 
V.  Wolfe,  44  Neb.  77,  62  N.  W.  318;  Haas  v.  Bank,  41  Neb.  754,  60  N.  W.  85. 
So,  in  the  case  of  a  note  given  for  the  pledgor's  accommodation.  Atlas  Bank 
V.  Doyle,  9  R.  I.  76;  Doud  v.  Reid,  53  Mo.  App.  553.  Where  the  debt  for 
which  a  note  was  pledged  is  paid  pending  an  action  on  the  note  by  the 
pledgee,  the  latter  may  continue  the  action,  subject  to  all  equitable  defenses, 
holding  the  proceeds  as  ti-ustee  for  the  pledgor.  First  Nat.  Bank  v.  Mann,  27 
S.  W.  1015,  94  Tenn.  17.  Where  notes  held  as  collateral  are  impounded  in  an 
equity  suit,  the  pledgee  is  still  entitled  to  control  the  same,  so  far  as  neces- 
sary to  bring  an  action  at  law  thereon,  and  have  the  proceeds  paid  into 
court.     GregoiT  v.  Pike,  15  C.  C.  A.  33,  67  Fed.  837. 

2  84  Mr.  Jones  (Pledges,  §  667)  says  there  is,  in  such  case,  no  duty  to  col- 
lect until  the  principal  debt  falls  due.    But  the  cases  cited  (Overlock  v.  Hills, 

8  Me.  383;  Bast  v.  Bank,  101  U.  S.  93)  do  not  seem  to  support  his  proposition. 
28 B  Hawks  V.  Hinchcliff,  17  Barb.  (N.  Y.)  492;    Grant  v.  Holden,  1  E.  D. 

Smith  (N.  Y.)  545;  Gage  v.  Punchard,  6  Daly  (N.  Y.)  229;  Garlick  v.  James,  12 
Johns.  (N.  Y.)  146;  Zimpleman  v.  Veeder,  98  111.  613;  Union  Trust  CJo.  v.  Rig- 
don,  93  111.  458;  Depuy  v.  Clark,  12  Ind.  427;  Wood  v.  Matthews^  73  Mo.  477, 
479;   Stevens  v.  Hurlbut  Bank,  31  Conn.  146. 

286  Dean  v.  Lawham,  7  Or.  423;  Lyle  v.  Barker,  5  Bin.  (Pa.)  457,  458; 
Mullen  V.  Morris,  2  Pa.  St.  85.  The  pledgee  is  bound  to  restore  the  pledge, 
in  the  condition  in  which  he  received  it,  on  payment  of  the  debt.  Stearns 
V,  Marsh,  4  Denio  (N.  Y.)  227. 

2  87  Davenport  v.  Tarlton,  1  A.  K.  Marsh.  (Ky.)  244;  Woodard  v.  Fitzpatrick, 

9  Dana  (Ky.)  117;  Huusaker  v.  Sturgis,  29  Cal.  142,  Geron  v.  Geron,  15 
Ala.  558;   Houton  v.  HoUiday,  2  Murphy  (N.  O.)  111. 


§    34]  RIGHTS    AND   LIABILITIES  OF   PLRDGEE  BEFORE   DEFAULT.  1.59 

This  diitj  is  fulfilled  only  by  a  delivery  of  the  identical  property 
received,2««  except  in  the  case  of  a  pledge  of  certificates  of  stock."" 
In  such  case  no  injury  is  done  the  pledgor  by  requiring  him  to  accept 
another  certificate  of  precisely  similar  character  in  lieu  of  it.  ilia 
own  certificate  was  only  the  evidence  that  he  owned  an  undivided 
interest  in  the  capital  and  business  of  the  corporation.  Another 
certificate  of  the  same  kind,  for  the  same  amount  of  stock,  would  en- 
title him  to  precisely  the  same  rights  as  the  former  certificate.  Each 
would  be  a  precise  equivalent  of  the  other,  and  it  is  certain  he  could 
suffer  no  pecuniary  loss  by  the  transaction;  while  "the  nature  of  the 
property,  or  rather  of  his  interest  in  it,  forbids  the  idea  that  it  could 
be  the  object  of  personal  attachment,  or  have  a  peculiar  value  in  his 
estimation,  as  contradistingushed  from  any  other  equal  number  of 
shares  in  the  same  company."  ^^" 

Same — Conversion  by  the  Pledgee. 

As  it  is  the  duty  of  the  pledgee  to  redeliver  the  pledge  upon  re- 
demption, if  he  wrongfully  sells  the  property  pledged, he  is  guilty  of 
a  conversionT^^  But  a  sale  by  the  pledgee  is  not,  ipso  facto,  a  con- 
ass  The  pledgee  must  redeliver  the  identical  article  pledged,  where  it  is  dis- 
tinctive in  its  character,  and  for  a  failure  to  do  bo  renders  himself  liable 
in  trover,  for  the  full  value  of  the  property  pledged,  without  any  deduction 
for  his  debt.  Ball  v.  Stanley,  5  Yerg.  (Tenn.)  199.  And  equity  may  be  in- 
voked for  this  purpose  where  the  law  faiis.    BiTSon  v.  Rayner,  25  Md.  424. 

289  Gilpin  V.  Howell,  5  Pa.  St.  41;  Horton  v.  Morgan,  19  N.  Y.  170;  Grumau 
V.  Smith,  81  N.  Y.  25;  Stewart  v.  Dralie,  46  N.  Y.  449;  Worthiugton  v.  Tor- 
mey,  34  Md.  182;  Atkins  v.  Gamble,  42  Cal.  86;  Hawley  v.  Brumagim,  33  Cal. 
394.  And,  as  to  redelivery  of  the  identical  bonds  deposited  in  pledge,  see 
Stuart  v.  Bigler's  Assignees,  98  Pa.  St.  80. 
280  Atkins  v.  Gamble,  42  Cal.  8G. 

291  The  pledgee  may  recoup  the  amount  of  his  debt  when  sued  for  the  con- 
version of  the  pledged  property,  or  for  any  tort  with  respect  thereto.  Stearns 
V.  Marsh,  4  Denio,  227.  Where  assignors  for  benefit  of  creditors,  before  the 
assignment,  convert  stock  pledged  to  them  as  security,  the  pledgor  is  not 
entitled  to  payment  In  full  for  his  claim  for  the  value  of  the  stock  converted 
out  of  the  assigned  estate,  on  the  ground  that  the  conversion  was  a  breach 
of  trust,  which  entitled  him  to  follow  the  pi-oceeds  specifically.  In  re  Jamison 
&  Co.'s  Estate,  163  Pa.  St,  143,  29  Atl.  1001.  The  fact  that  the  transferee  of 
pledged  securities  converts  them  does  not  render  the  original  pledgee  liable  in 
trover.    Waddle  v.  Owen,  43  Neb.  489,  61  N.  W.  731, 


160  BAILMENTS    FOR    MDTDAL    BENEFIT PLEDGE.  [Ch.    4 

version.^'*  It  may  be  for  the  interest  of  the  pledgor  to  kee^LhJgJ^P- 
tract  alive,  and,  if  it  is  so,  he  may  do  it.  The  maxim  that  no  one 
shall  take  any  advantage  by  his  own  wrongful  act  applies.^*'  But, 
although  the  unlawful  sale  does  not^  per  se,  operate  as  a  conversion, 
yet  thepiedgor  may,  at  his  option,  so  consider  it;,  and,Jtiemaj_  re- 
gard the  contract  as  at  an  end,  tender  or  offer  ii^tpavMs  debt,  and 
demand  his  pledge,^^*  or  may  sue  for  damages^fbr  the  sale.^^"^  As 
tcTiKe  measure  of  damages  in  such  cases  there  is  a  conflict  of  opin- 
ion. Some  authorities  hold  that  the  value  of  the  property  at  the 
time  of  its  wrongful  sale  or  loss  is  the  proper  rule;  ^^*'    others,  that 

292  The  pledgee  of  goods  does  not,  by  asserting  that  the  transaction  was 
an  out  and  out  sale,  divest  himself  of  his  special  property  in  the  goods,  or 
relieve  the  pledgor  from  tendering  the  sum  advanced.  Yungmann  v.  Bries- 
mann,  4  Reports,  119,  67  Law  T.  642,  41  Wkly.  Rep.  148. 

293  Hopper  V.  Smith,  63  How.  Prac,  (N.  Y.)  34,  38. 

294  Talty  V.  Freedman's  Savings  &  Trust  Co.,  93  U.  S.  321;  Amos  v.  SInnott, 
5  111.  440;  Cooper  v.  Ray,  47  111.  53;  Henry  v.  Eddy,  34  111.  508;  Kennedy's 
Adm'x  V.  Hammond,  16  Mo.  341;  Hope  v.  Lawrence,  1  Hun  (N.  Y.)  317.  In  an 
action  by  the  pledgor  of  a  note  as  collateral  against  the  pledgee,  for  conver- 
sion thereof,  plaintiff  need  not  tender  the  debt  for  which  the  collateral  was 
pledged,  where  the  full  amount  thereof  has  been  realized  by  defendant.  E.  F. 
Hallack  Lumber  Manuf'g  Co.  v.  Gray,  19  Colo.  149,  34  Pac.  1000. 

29C  Leighton  v.  Burkham,  7  Ohio  Cir.  Ct.  R.  487;  RatclifC  v.  Vance,  1  Mills  (S. 
C.)  349;  Bush  v.  Lyon,  9  Cow.  (N.  Y.)  52;  Cass  v.  Higeubotam,  100  N.  Y.  248, 
249,  3  N.  E.  189,  190;  Halliday  v.  Holgate,  L.  R.  3  Exch.  299,  302;  McNeil  v. 
Tenth  Nat.  Bank  of  New  York,  55  Barb.  (N.  Y.)  59;  Campbell  v.  Parker,  9 
Bosw.  (N.  Y.)  322.  A  sale  of  a  pledge  by  the  pledgee,  before  the  maturity  of 
a  debt  secured  thereby,  if  unauthorized  by  the  agreement,  renders  the  pledgee 
liable  for  a  breach  of  trust,  though  he  afterwards  purchases  other  articles  of 
the  same  kind  and  value  to  replace  those  sold.  Dykers  v.  Allen,  7  Hill  (N.  Y.) 
497.  A  debtor  may  ratify  his  creditor's  exchange  of  pledged  property  by 
bringing  an  action,  within  a  reasonable  time,  to  recover  the  property  got  by 
the  exchange,  and  against  one  who  has  attached  it  as  the  creditor's  property, 
unless  there  is  evidence  inconsistent  with  that  of  ratification.  Strong  v.  Ad- 
ams, 30  Vt.  221.  A  debtor  may  repudiate  his  creditor's  exchange  of  pledged 
property  by  bringing  an  action,  within  a  reasonable  time,  to  recover  the  orig- 
inal property  pledged  by  him  to  secure  his  debt.     Id. 

29  8  Robinson  v.  Hurley,  11  Iowa,  410;  Blood  v.  Erie  Dime  Sav.  &  Loan  Co., 
164  Pa.  St  95,  30  Atl.  362;  Loomis  v.  Stave,  72  111.  623;  Belden  v.  Perkins,  78 
111.  449;  Fowle  v.  Ward,  113  Mass.  548;  Newcomb-Buchanan  Co.  v.  Baskett, 
14  Bush  (Ky.)  658;  Rosenzweig  v.  Frazer,  82  Ind.  342;  Hudson  v.  Wilkinson, 
61  Tex.  606;    Grimes  v.  Watkins,  59  Tex.  140. 


§    34]  RIGHTS  AND  LIABILITIES  OF   PLEDGEE   BEFORE  DEFAULT.  HU 

It  Is  the  value  at  the  time  of  redemption  and  demand,"^  or  even  the 
highest  intermediate  value.^**  The  question  arises  when  there  is 
a  conversion  of  pledged  property  which  is  subject  to  fluctuations  in 
value.  The  iqeasure  of  damap^es  in  trover  is^  ordinarily,  the  valuej)f 
the  property  at  fhp  tiT|]p  of  tl|f  rnnvprsinn ;  "»  and  it  is  apprehended 
that  this  is  the  rule  to  he  applied  to  the  prei="^t  q"^'"^^'^"  WTiere  the 
ground  of  the  action  was  the  alleged  breach  of  the  contract  of 
pledge,  by  reason  of  the  failure  on  the  part  of  a  bank  to  exercise  due 
care  in  the  custody  of  bonds  pledged,  whereby  they  were  lost,  the 
true  measure  of  damages  was  held  to  be  their  marliet  value,  com- 
puted at  the  time  of  the  loss.^**"  It  was  said  that,  after  the  bonds 
had  been  lost,  and  it  had  become  impossible  to  return  them,  there 
was  no  necessity  for  a  demand,  and,  when  made,  it  could  have  no 
significance  or  effect  in  determining  the  rights  of  the  parties. 
These  had  become  fixed  when  the  breach  occurred  by  the  loss  of  the 
bonds,  and  so  the  proper  measure  of  damages  is  their  value,  com- 
puted at  that  time.^°^  That  the  other  rule  of  damages  is  productive 
of  injustice  may  be  readily  seen.  Stocks  that  cost  the  owner  little 
or  nothing,  now  and  then  advance  to  par,  and  above.  Suppose  the 
owner  of  such  stocks  should  pledge  them  when  not  worth  10  cents 
on  the  dollar,  and  the  pledgee  convert  them.  Circumstances  arise, 
however,  which  enhance  their  value.  By  delaying  his  suit,  or  the 
trial  of  it,  until  these  circumstances  have  had  their  full  effect,  the 
pledgor,  by  invoking  the  aid  of  the  presumptions  (1)  that  he  had 
parted  with  his  money  for  the  stock;  (2)  that  he  obtained  the  stock 
as  a  permanent  investment;  and  (3)  that  it  is  to  be  presumed  that 
he  would  have  kept  it  until  the  time  of  the  trial, — can  elect  to  take 

297  Pinkerton  v.  Manchester  &  L.  R.  Co.,  42  N.  H.  424;  Reynolds  v. 
Witte,  13  S.  C.  5;  Baltimore  C.  P.  Ry.  Co.  v.  Sewell,  35  Md.  238;  Fowle  v. 
Ward,  113  Mass.  548. 

29  8  Bank  of  Montgomery  v.  Reese,  26  Pa.  St.  143;  Page  v.  Fowler,  39  Cal. 
412;  Wilson  v.  Little,  2  N.  Y.  443.  Or  the  highest  value  within  a  reasonable 
time  after  the  pledgor  becomes  aware  of  the  conversion.  Smith  v.  Savin,  141 
N.  Y.  315,  36  N.  E.  888;  Baker  v.  Drake,  53  N.  Y.  211;  Wright  v.  Bank  of  the 
Metropolis,  110  N.  Y.  237,  18  N.  E.  79;  Galigher  v.  Jones,  129  U.  S.  200,  9  Sup. 
Ct  335.    And  see  2  Sedg.  Dam.  (8th  Ed.)  §§  509-514,  520-023. 

29  9  Stirling  v.  Garrltee,  18  Md.  4G8. 

800  Third  Nat.  Bank  v.  Boyd,  44  Md.  47. 

•01  Id. 

LAW  BAILM, — 11 


162  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 


f 


the  market  value  at  the  time  of  trial,  when  each  of  these  presump- 
tions is  baseless.  Such  a  rule,  instead  of  being  general,  fixed,  and 
certain,  is  merely  speculative,  conjectural,  and  dependent  upon 
accidental  circumstances.^"^    ^  r^   .^   [  v  \   Jr  i/i\„ 

SAME— OF  PLEDGEE  AFTER  !eiJ3FAULT. 

35.  After  default  of  the  pledgor,  the  pledgee  has  the  fol- 
lo-w^ing  remedies: 

(a)  He  may  sue  on  the  debt  secured  -without  losing   his 

lien  (p.  163). 

(b)  He  may  sell  the  pledged  property — 

(1)  At    common    la^w,    upon    notice   to  the   pledgor 

(p.  164). 

(2)  By  a  proceeding  in   equity,  when   his   right    is 

disputed  or  an  account  is  necessary  (p.  168). 

(3)  Under  a  power  of  sale  given  by  the  pledge  con- 

tract (p.  169). 

(4)  Under  a  power  given  by  statute  (p.  170). 
NOTE — Some   statutes   take   away  the   power  to  sell   at 

common  law  or  under  a  pow^er. 

After  the  debt  secured  or  the  engagement  to  be  performed  is  due, 
the  pledgee  maj  continue  to  hold  the  pledge  until  it  i«  redeemed,^"^ 
or  he  may  pursue  any  one  of  the  remedies  enumerated  in  the  black 
letter  text.^''*  If  he  sells  the  pledge,  any  surplus  remaining  in  his 
hands,  after  the  satisfaction  of  his  claims,  he  holds  for  the 
pledgor.'**" 

«02  Sturges  v.  Keith,  57  111.  451;  Tyng  v.  Commercial  Warehouse  Co.,  58  N. 
Y.  308;    Falk  v.  Fletcher,  18  C.  B.  (N.  S.)  403. 

808  Robinson  v.  Hurley,  11  Iowa,  410;  Rozet  v.  McClellan,  48  111.  345.  A 
contract  or  pledge  may  make  it  the  duty  of  the  pledgee  to  sell  within  a  speci- 
fied time,  and  his  failure  to  do  so  is  then  such  breach  of  duty  as  will  render 
him  answerable  to  the  pledgor.    Cooper  v.  Simpson,  41  Minn.  46,  42  N.  W.  601. 

8  0*  Robinson  v.  Hurley,  11  Iowa,  410. 

806  Stearns  v.  Marsh,  4  Denio,  227;  Hunt  v.  Nevers,  15  Pick.  (Mass.)  500; 
Whittaker  v.  Bank,  52  N.  J.  Eq.  400,  29  Atl.  203.  The  application  of  a  sur- 
plus arising  from  a  sale  of  securities  may  be  made  pro  rata  to  all  liabilities 
mentioned  In  a  letter  by  the  debtor  to  the  pledgee,  directing  him  to  hold  the 


§    35]  KIGHTS    AND   LIABILITIES   OF   PLEDQBB   AFTER   DEFAULT.  163 

Suit  on  the  Debt. 

Wliere  a  creditor  has  collateral  security  for  his  debt,  he  is  not 
compelled  to  rest  exclusively  upon  such  security  for  repayment,  but, 
notwithstanding  the  pledge  or  collateral  security,  may  look  to  the 
general  credit  of  his  debtor,*"^  unless  there  is  some  agreement  or 
contract,  express  or  implied,  to  give  time,  or  to  look  to  a  particular 
fund.^*'^  The  creditor  may  sue  the  debtor,  and  recover  a  judgment 
against  him  for  the  amount  of  the  debt,  without  destroying,  or  in 
the  least  affecting,  his  lien  on  the  property  pledged.*"*  It  is  true 
that  the  extinguishment  of  a  debt,  if  really  extinguished,  will  de- 
stroy all  liens  existing  on  pix)perty  pledged  for  its  payment.  It  la 
also  true  that  the  original  debt  for  which  the  property  was  pledged 
may  be  said,  in  one  sense,  to  have  been  extinguished  by  being  merged 
in  the  judgment, — a  higher  security.  It  is  true  that  the  original 
debt  is  so  extinguished  by  having  a  judgment  rendered  thereon  that 
another  action  could  not  be  maintained  on  the  original  debt.  But 
this  is  the  only  way  in  which  it  was  extinguished.  The  debt,  in 
fact,  still  remains,  in  a  new  form,  but  evidenced  by  a  higher  security, 
and  the  property  pledged  for  its  payment  still  remains  liable  there- 
stock  as  a  general  collateral  security  for  all  the  pledgor's  liability  to  the 
pledgee  at  present  existing,  or  which  may  thereafter  be  incurred  by  him.  Eich- 
elberger  v.  Murdock,  10  Md.  373. 

808  Butterworth  v.  Kennedy,  5  Bosw.  (N.  Y.)  143;  Rogers  v.  Ward,  8  Allen 
<Mass.)  387;  Darst  v.  Bates,  95  111.  493;  Whitwell  v.  Brigham,  19  Pick.  (Mass.) 
117;  Beckwith  v.  Sibley,  11  Pick.  (Mass.)  482;  Sonoma  Val.  Bank  v.  Hill,  59 
Cal.  107;  Jones  v.  Scott,  10  Kan.  33;  Smith  v.  Strout,  03  Me.  205;  Ehrlick  v. 
Ewald,  66  Cal.  97,  4  Pac.  1062;  Grand  Island  Sav.  &  Loan  Ass'n  v.  Moore,  40 
Neb.  686,  59  N.  W.  115;  Ambler  v.  Ames,  1  App.  D.  C.  191.  The  person  hold- 
ing collateral  securities  Is  not  bound  to  resort  to  them  before  suing  upon  his 
principal  claim;  but,  when  that  claim  is  satisfied,  he  may  be  compelled  to  re- 
lease or  reassign  the  collaterals.  Wallace  v.  Finnegan,  14  Mich.  170.  If  a 
pawn  Is  lost,  the  pledgee  cannot  recover  on  the  debt  for  which  It  stood  as 
security,  without  showing  that  the  loss  was  In  no  wise  attributable  to  any 
want  of  necessary  care  and  diligence  upon  his  part,  Crocker  v.  Monrose,  18 
La.  553. 

807  Archibald  v.  Argall,  53  111.  307;  Wilhelm  v.  Schmidt,  84  111.  183;  Corn- 
wall V,  Gould,  4  Pick.  (Mass.)  444;  Beckwith  v.  Sibley,  11  Pick.  (Mass.)  482; 
Bigelow  V.  Walker,  24  Vt.  149. 

808  Black  V.  Reno,  59  Fed.  917;  Smith  v.  Sti-out,  63  Me.  205;  Jones  v.  Scott, 
10  Kan.  35;   Charles  v.  Coker,  2  S.  C.  122. 


164  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

for.  The  debt,  in  fact,  remains  until  it  is  satisfied.'"'  The  pledgor, 
when  sued  on  the  pledge  debt,  cannot  set  off  the  value  of  the 
pledge.*^**  But,  in  a  number  of  states,  it  may  be  set  off  in  this  way 
when  the  pledgee  has  converted  the  pledge.* ^^  In  these  states  the 
pledgee,  when  suing  on  the  debt,  must  produce  the  pledge,  or  ac- 
count for  it,  at  the  time  of  the  trial.^^^ 

The  pledgee  may  even  attach  the  pledged  property  in  a  suit  on  the 
debt,  but  by  so  doing  he  waives  the  lien  of  the  pledge,^ ^* 

Sale  at  Common  Lnw. 

The  property  pledged  may  be  sold  after  the  debt  which  it  was  de- 
livered to  secure  has  become  due,  if  such  sale  be  made  at  public 
auction,  and  upon  reasonable  notice  thereof  to  the  pledgor.*^*  An 
assignee  of  the  pledgee's  interest  has  the  same  right  to  sell  that  the 
pledgee  has.*^"*  But  the  pledgor  cannot  compel  a  sale.  His  only 
remedy  is  to  redeem."^®  The  right  to  sell  property  in  which  the 
pledgor  had  only  a  limited  interest  has  already  been  discussed.^" 

80  9  Jones  V.  Scott,  10  Kan.  35. 

810  Winthrop  Sav.  Bank  v.  Jackson,  67  Me.  570. 

311  Steams  v.  Marsh,  4  Denio  (N.  Y.)  227;  Cass  v.  Higenbotam,  27  Huu 
(N.  Y.)  406,  408;  Bigelow  v.  Walker,  24  Vt  l49;  Bank  of  British  Columbia  v. 
Marshall,  11  Fed.  19. 

812  Ocean  Nat.  Bank  of  New  York  v.  Fant,  50  N.  Y.  474;  Smith  v.  Rock- 
well, 2  Hill  (N.  Y.)  482;  Stuart  v.  Bigler's  Assignees,  98  Pa.  St.  80;  Spalding 
V.  Bank  of  Susquehanna  Co.,  9  Pa.  St.  28.  In  an  action  by  a  pledgee  upon  the 
debt  secured  by  the  pledge,  he  is  not  required  to  account  for  nonnegotiabl© 
securities  pledged  to  him  by  defendant,  in  the  absence  of  any  allegation  or 
proof  that  he  has  lost  or  misappropriated  them.  Marberry  v.  Farmers'  & 
Mechanics'  Nat.  Bank,  6  Tex.  Civ.  App.  607,  26  S.  W.  215. 

818  Legg  V.  Willard,  17  Pick.  (Mass.)  140;  Whitaker  v.  Sumner,  20  Pick. 
(Mass.)  399;  Buck  v.  lugersoll,  11  Mete.  (Mass.)  226.  Conti-a,  Arendale  v. 
Morgan,  5  Sneed  (Tenn.)  703.    And  compare  Marshall  v.  Otto,  59  Fed.  249. 

814  Mauge  V.  Heringhi,  26  Cal.  577;  Vaupell  v.  Woodward,  2  Sandf.  Ch.  (N. 
Y.)  143;  Garlick  v.  James,  12  Johns.  (N.  Y.)  146;  De  Lisle  v.  Priestman,  1 
Brown  (Pa.)  176;  Cushman  v.  Hayes,  46  111.  145;  Union  Trust  Co.  v.  Rigdon, 
93  111.  458;    Robinson  v.  Hurley,  11  Iowa,  410. 

816  Alexandria,  L.  &.  H.  R.  Co.  v.  Burke,  22  Grat.  (Va.)  254,  263. 

816  Mueller  v.  Nichols,  50  111.  App.  063;  Rozet  v.  McClellan,  48  111.  345; 
Badlam  v.  Tucker,  1  Pick.  (Mass.)  389;  Fx-anklln  Sav.  Inst  y.  Preetorius,  6 
Mo.  App.  470. 

817  See  ante,  p.  113. 


15    :iZ]  RIGHTS    AMD    LIABILITIES    OF    PLEDGEE    AFTEU    DEFAULT.  166 

When  stock  is  pledged  as  collateral  security,  by  delivery  of  the  cer- 
tificates, with  blank  transfers  on  the  back,  signed  by  the  owner,  the 
pledgee  may  sell  the  stock  as  the  readiest  mode  of  collection,  giving 
the  pledgor  and  his  successor  in  interest  reasonable  notice  to  redeem, 
and  of  the  time  and  place  of  sale.^^»  So  a  br()kei\_c;arrving  Htoc^t 
for  a  customer  on  margins,  can  sell  by^Fi^  i":^'  'l'^  r<  quired^notice; 
but  a  sale  at  the  stock  exchange  witlioui  such  iidticc  would  be_ft 
conversion,  notwithstandint,^  a  custom  of  Ijiokcrs  Ui  do  tia^^*  Un 
pledge  of  commercial_pai)cr  as  cullati-r.il  sccmii  v  for  the  payiiipgl 
of  a  debt  does  not,  in  tlu^  absence  of  a  s[iccial  power  fdi-  tliat  £iir- 
pose,'^"  authorize  the  party  to  \vlioni  siicli  p;i[M  i-  is  so  pl.'dged-to 
sell  the  securities  so  pled^n-d  upon  defaaU  of  iiaymeuL,  ciliiei'  uL  !♦♦*%• 
lio  or  private  sale.     He  is  bound  lo  hold  and  collect  the  same  na  it 

818  Canfield  v.  Minneapolis  Agricultural  &  Mechanical  Ass'n,  14  Fed.  801; 
Brown  v.  Ward,  8  Duer  (X.  Y.)  GGO;   Wallace  v.  BerdeU,  24  Hun  (N.  Y.)  379. 

819  Wheeler  v.  Newbould,  16  N.  Y,  802;  Lawrence  v.  Maxwell,  53  N.  Y.  10. 
Contra,  Colket  v.  Ellis,  10  i'hila.  (Pa.)  375;  Maryland  Fire  Ins.  Ck).  v.  Dalrym- 
ple,  25  Md.  242;    Bryson  v.  Rayuer,  25  Md.  424. 

820  Union  Trust  Co.  v.  Rigdon,  93  111.  458;  Fletcher  v.  Dickinson,  7  Allen 
(Mass.)  23,  25;  Washburn  v.  Pond,  2  Allen  (Mass.)  474;  Stearns  v.  Marsh,  4 
Denio  (N.  Y.)  227;  Hunter  v.  Hamilton,  52  Kan.  195,  34  Pac.  782.  A  power  of 
sale  does  not  deprive  the  pledgee  of  the  right  to  sue  on  the  paper.  Nelson  \ . 
Baton,  26  N.  Y.  410;  Nelson  v.  P^dwards,  40  Barb.  (N.  Y.)  279;  Nelson  v.  W'v] 
Ilngton,  5  Bosw.  (N.  Y.)  178.  Where  negotiable  paper  is  pledged  as  collateral 
security  for  a  loan,  and  the  lender  is  .authorized  to  sell  the  collaterals  In  case 
the  loan  is  not  paid  at  maturity,  such  authority  does  not  limit  the  rights  of 
the  lender  to  a  sal.e  of  the  collateral,  so  as  to  prevent  him  from  suing  thereon. 
Holland  Trust  Co.  v.  Waddell,  75  Hun,  104,  36  N.  Y.  Supp.  9S0.  Though  a 
pledgee  cannot,  without  express  autJiorlty,  sell  commercial  paper  pledged  as 
collateral  security,  a  court  may,  under  proper  circumstances,  order  a  judicial 
sale  of  it.  Cleghorn  v.  ]Minuesota  Title  Ins.  &  Trust  Co.  (Minn.)  59  N.  W. 
320.  The  foreclosure  and  sale  of  a  negotiable  instrument  held  as  a  pledge  is 
authorized,  when  the  maker  resides  in  a  remote  country  or  a  different  state, 
and  it  does  not  appear  that  he  has  any  property  within  the  jurisdiction  sub- 
ject to  seizure  and  sale.  Donohoe  v.  Gamble,  38  Cal.  341.  Where  a  bond  and 
mortgage  having  several  years  to  run  are  assigned  as  collateral  security  for  a 
loan  due  in  three  months,  but  the  assignment  does  not  provide  for  a  sale  of 
the  security,  the  lender,  on  maturity  of  the  loan,  may  sue  in  equity  to  pro- 
cure a  sale.  Porter  v.  Frazer,  6  Misc.  Rep.  533,  27  N.  Y.  Supp.  517.  Where 
a  mortgage  and  note  were  assigned  as  collateral  security,  with  authority  In 
the  assignee,  on  default,  to  sell  the  mortgage,  the  pledgee  was  authorized  to 
sell  the  note  or  debt     Watson  v.  Smith  (Minn.)  62  N.  W.  265. 


166  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

becomes  due,  and  apply  the  net  proceeds  to  the  payment  of  the 
debt  so  secured."'^^  But  negotiable  bonds  held  in  pledge  may  be 
sold  without  a  power  of  sale."'' 

Before  the  pledgee  can  lawfully  sell,  personal  notice  to  the  pledgor 
to  redeem,  and  of  the  intended  sale,  must  be  giyen;  and  if  the  pledgor 
cannot  be  found,  and  notice  cannot  be  giyen  him,  judicial  proceedings 
to  authorize  the  sale  must  be  resorted  to.""^  Before  giying  notice, 
the  pledgee  has  no  right  to  sell  the  pledge,  and,  if  he  do,  the  pledgor 
may  maintain  troyer  without  tendering  the  debt.*'*  When  the 
pledgor's  liability  is  not  fixed  until  a  demand  is  made  upon  him,  the 
pledgee  must  giye  him  a  notice  sufficient  to  fix  his  liability,  in  addi- 
tion to  the  notice  of  sale.^'''     The  general  rule,  in  the  absence  of  a 

321  Union  Trust  Co.  v.  Rigdon,  93  111.  458;  Zimpleman  v.  Veeder,  98  111. 
«)13;  Fletclier  v.  Dickinson,  7  Allen  (Mass.)  22,  25;  Brookman  v.  Metcalf,  5 
Bosw.  (N.  Y.)  429;  Brown  v.  Ward,  3  Duer  (N.  Y.)  660;  Lamberton  v.  Win- 
dom,  12  Minn.  232  (Gil.  151);  Morris  Canal  &  Banking  Co.  v.  Lewis,  12  N.  J. 
Eq.  823;  In  re  Litchfield  Bank,  28  Conn.  575;  Whitteker  v.  Charleston  Gas 
Co.,  10  W.  Va.  717;  Hunt  v.  Nevers,  15  Pick.  (Mass.)  500;  Jollet  Iron  Co.  v. 
Scioto  Fire  Brick  Co.,  82  111.  584;  Wheeler  v.  Newbould,  16  N.  Y.  392;  Fletch- 
er V.  Dickinson,  7  Allen  (Mass.)  23,  25.  So  a  savings  bank  book  cannot  be 
sold  by  a  pledgee.  Boynton  v.  Payrow,  67  Me.  587.  An  ordinary  note  and 
mortgage  pledged  cannot  be  sold.  IMorris  Canal  &  Banking  Co.  v.  Fisher,  9 
N.  J.  Eq.  667.  But  coupon  bonds  may  be.  Morris  Canal  &  Banking  Co.  v. 
Lewis,  12  N.  J.  Eq.  323;    Merchants'  Nat  Bank  v.  Thompson,  133  Mass.  482. 

822  Duffield  V.  Miller,  92  Pa.  St.  286;  Brown  v.  Ward,  3  Duer  (N.  Y.)  660; 
Newport  &  C.  Bridge  Co.  v.  Douglass,  12  Bush  (Ky.)  673;  Hancock  v.  Frank- 
lin Ins.  Co.,  114  Mass.  155,  156. 

323  Garlick  v.  James,  12  Johns,  (N.  Y.)  146;  Stearns  v.  Marsh,  4  Denio  (N. 
Y.)  227;    Indiana  &  L  C.  Ry.  Co.  v.  McKeman,  24  Ind.  62. 

324  Stearns  v.  Marsh,  4  Denio  (N.  Y.)  227;  Lucketts  v.  Townsend,  3  Tex. 
119;  Wilson  v.  Little,  2  N.  Y.  443;  E.  F.  Hallack  Lumber  &  Manuf  g  Co.  v. 
Gray,  19  Colo.  149,  34  Pac.  1000;  Smith  v.  Gavin,  141  N.  Y.  315,  36  N.  E.  338; 
Wheeler  v.  Newbould,  16  N.  Y.  392.  But  see  McCiintock  v.  Central  Bank,  120 
Mo.  127,  24  S.  W.  1052.  A  pledgee,  having  authority  to  sell  the  pledged  prop- 
erty on  breach  of  the  conditions  of  the  pledge,  may,  before  that  event,  agree 
to  sell  the  property  to  a  third  person  upon  the  happening  thereof.  Taft  v. 
Church,  162  Mass.  527,  39  N.  E.  283. 

82  0  Garlick  v.  James,  12  Johns.  (N.  Y.)  146;  Moffat  v.  Williams  (Colo.  App.) 
36  Pac.  914;  MiUiken  v.  Dehon,  27  N.  Y.  364;  Wilson  v.  Little,  1  Sandf.  (N. 
Y.)  351.  Consent  that  the  pledgee  may  sell  without  giving  notice  does  not 
relieve  him  from  the  necessity  of  demanding  payment  of  the  debt  before  he 
Bells.     Wilson  v.  Little,  2  N.  Y.  443.     The  sale  of  stock  pledged  aa  collateral. 


§   35]  RIGHTS   AND    LIABILITIES   OF   PLKDQEE   AFTER    DICKAULT.  167 

contract  affecting  the  question,  is  that  the  pledgor  must  have  notice 
of  the  time  and  the  place  of  sale;  "^^  and  the  principal  reason  assigned 
for  the  rule  is  that  he  may  have  an  opportunity  to  attend  the  sale, 
and  see  that  it  is  fairly  conducted;  that  he  may  exert  himself  in  pro- 
curing buyers,  and  thus  enhance  the  price; «"  that  he  has,  in  fact, 
the  right  to  redeem  the  pledge  at  any  moment  before  the  sale  shall 
be  actually  made.'^^  These  rules  may  be  modified  or  waived  by 
agreement.^^'  But  the  only  object  of  requiring  notice  to  be  given  in 
such  a  case  is  to  inform  the  debtor  of  the  time  and  place  of  sale;  and, 
when  he  is  already  otherwise  fully  informed  on  the  subject,  a  further 
and  more  formal  notice  is  unnecessary.^""  The  case  is  not  like  a 
legal  proceeding,  in  which  service  or  waiver  of  notice  should  appear 
in  the  record.  Here  the  whole  matter  is  in  pais,  and  the  question  is, 
did  the  debtor  have  actual  notice  of  the  time  and  place  of  sale?  The 
safest  course  is  to  have  a  formal  written  notice  served  upon  him, 
for  then  the  fact  of  notice  can  be  easily  proved.  If  this  safe  course 
be  not  pursued,  the  pledgee  must,  at  his  peril,  be  prepared  to  prove 

made  in  default  of  payment  of  a  demand  for  a  larger  8um  than  that  for  which 
the  stock  was  pledged,  is  a  conversion  of  such  stock,  though,  immediately 
prior  to  such  sale,  the  pledgee  offer  to  accept  the  amount  Justly  due,  plain- 
tiff not  having  a  reasonable  time  within  which  to  comply  with  such  offer. 
Blood  V.  Erie  Dime  Savings  &  Loan  Co.,  164  Pa.  St.  95,  30  AU.  3G2.  The  no- 
tice must  be  to  the  pledgor  or  his  assignee,  or  to  some  one  authorized  to  re- 
ceive notice.  Notice  given  to  an  agent  having  no  authority  over  the  pledge 
is  not  sufficient.     Washburn  v.  Pond,  2  Allen  (Mass.)  474. 

826  Wilson  V.  Little,  2  N.  Y.  443;  Lucketts  v.  Townsend,  3  Tex.  119;  Stearns 
V.  Marsh,  4  Denio  (N.  Y.)  227;  Davis  v.  Funk,  39  Pa.  St.  243;  Dlller  v.  Bru- 
baker,  52  Pa.  St.  498;  McDowell  v.  Chicago  Steel  Works,  124  111.  491,  10  N. 
E.  854.  Notice  given  on  November  13th  is  sufficient  authority  for  the  pledgee 
to  sell  hypothecated  stock  on  November  20th,  where,  by  the  terms  of  the  con- 
tract between  the  parties,  the  loan  was  payable  on  one  day's  notice,  and,  If 
not  paid,  according  to  the  agreement,  the  defendant  was  authorized,  wiiuout 
further  notice,  to  sell  the  stock  pledged  for  the  purpose  of  satisfying  the 
same.     Maryland  Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242. 

82T  Milliken  v.  Dehon,  27  N.  Y.  364,  369. 

828  Milliken  v.  Dehon,  27  N.  Y.  364. 

829  Maryland  Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242;  Bryson  v.  Rayner.  Id. 
424;  McDowell  v.  Chicago  Steel  Works,  124  lU.  491,  16  N.  E.  854;  Loomis  v. 
Stave,  72  111.  623;  Robinson  v.  Hurley,  11  Iowa,  410;  Hamilton  v.  State  Bank. 
22  Iowa,  306.     And  see  Belden  v.  Perkins,  78  111.  441». 

880  Alexandria,  L.  &  H.  R.  Co.  v.  Burke,  22  Grat  (Va.)  254,  264. 


168  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.  4 

otherwise  that  the  pledgor  was  informed  of  the  time  and  place  of 
sale  a  reasonable  time  before  the  same  was  to  take  place."*  The 
sale  must  be  public,  unless  the  pledgor  has  agreed  that  the  pledgee 
may  sell  at  private  sale.^-'^ 

The  pledgee  cannot  become  the  purchaser  at  a  sale  made  by  him- 
self.^^^  If  he  does  so  purchase,  the  pledgor  has  the  right  to  treat  it 
as  a  valid  sale,  or  to  treat  it  as  void;  and  if  he  elects  to  treat  thv  sale 
as  void,  then  the  title  to  the  pledge  remains  precisely  as  if  no  sale  had 
been  made,  with  the  lien  of  the  pledgee  still  on  it  for  the  amount  of 
his  debt"* 

Sale  in  Equity. 

Where  there  is  a  general  pledge  of  personal  property,  neither  the 
time  of  redemption  nor  the  manner  and  time  of  sale  being  specified 
in  the  contract,  the  appropriate  remedy  of  the  pledgee,  when  his 
rights  or  powers  are  in  any  manner  questioned  or  denied,  is  by  a 
proceeding  in  equity,  in  which  the  court  can  make  the  pledge  avail- 

381  Id. 

882  Bryson  v.  Rayner,  25  Md.  424;  Jeanes'  Appeal,  116  Pa.  St  573,  11  AtL 
862. 

888  stokes  V.  Fraaier,  72  III.  428;  Killian  v.  Huffman,  6  111.  App.  200;  Mary- 
land Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242.  But  the  pledgee  may  be  given 
power  to  purchase  by  express  contract.  Chouteau  v.  Allen,  70  Mo.  290;  Ham- 
ilton V.  Schaack,  10  Wldy.  Dig.  (N.  Y.)  423.  The  holder  of  collateral  secu- 
rity cannot  appropriate  it  in  satisfaction  of  the  debt  at  his  own  option.  Diller 
V.  Brubaker,  52  Pa.  St.  498.  Where  a  pledgee  is  an  agent  or  trustee,  and  is 
authorized  by  the  pledgor  to  purchase  the  pledge  in  his  own  right  in  case  of 
sale,  a  purchase  by  the  pledgee  in  his  own  right  is  valid,  as  between  him  and 
the  pledgor.    Manning  v.  Shriver  (Md.)  28  Atl.  899. 

8  84  Bank  of  Old  Dominion  v.  Dubuque  &  P.  R.  Co.,  8  Iowa,  277;  Bryson  v. 
Rayner,  25  Md.  424;  Mai-yland  Fire  Ins.  Co.  v.  Dalrymple,  Id.  242;  Hyams  v. 
Bamberger,  10  Utah,  8,  86  Pac.  202;  Stokes  v.  Frazier,  72  111.  428.  But  the 
pledgor  may  ratify  such  a  purchase.  Hill  v.  Finigan,  62  Cal.  426;  Carroll  v. 
MuUanphy  Sav.  Bank,  8  Mo.  App.  2-±9.  Pledgor  has  a  right  of"  election  to 
treat  the  purchase  of  the  pledged  property  by  the  pledgee  at  his  own  sale  aa 
Invalid,  but  loses  such  right  by  failing  to  exercise  it  within  a  reasonable  time 
after  being  informed  of  the  purchase.  Hill  v.  Finigan,  77  Cal  267,  19  Pac. 
494.  Pledgor's  election  to  treat  the  purchase  of  the  pledged  property  by  the 
pledgee  at  his  own  sale  as  valid  cannot  afterwards  be  retracted;  nor  can  an 
election  to  disaffirm  the  sale  be  retracted  or  renewed  at  a  later  date,  for  the 
pui-pose  of  increasing  the  damages.    Hill  v.  Finigan,  77  Cal.  207,  19  Pac.  494. 


;    :'>7j]  RIGHTS    AND   LIABILITIES   OF    PLEDGEE   AFTER    DEFAULT.  169 

able,  with  due  regard  for  the  rights  of  all  concerned.'"  In  other 
cases  a  resort  cannot  be  had  to  equity  unless  the  taking  of  an 
account  is  necessary.'^®  The  court  must  order  a  sale  in  default  of 
performance,  for  there  can  be  no  strict  foreclosure;  that  is,  it 
cannot  be  decreed  that  the  pledgee  shall  become  absolute  owner  if 
the  pledgor  fails  to  redeem  within  a  certain  time."^ 

Sak  under  Power  of  Sale. 

The  parties  may,  at  the  time  of  creating  the  relation  of  pledgor  and 
pledgee,  provide  that  the  latter  shall  have  power  to  sell  the  pledged 
property,  on  default,  on  such  terms  and  in  such  manner  as  they  see 
fit.'^®  In  the  absence  of  a  provision  in  the  contract  changing  the 
rule  where  the  property  is  susceptible  of  division,  and  will  bring 
more  by  being  divided  and  sold  in  separate  parcels  or  lots  than  by 
being  sold  in  a  body,  or  where,  by  a  sale  of  a  part  of  the  property, 
a  sufficient  amount  can  be  realized  to  pay  off  the  debt,  then  it  is  the 
duty  of  the  pledgee  to  make  the  division,  and  sell  a  portion  accord- 
ingly; and,  if  he  fails  in  this,  the  sale  will  be  held  invalid  on  the 
application  of  the  party  aggrieved.*'®  Where  property  is  conveyed 
by  a  debtor  to  his  creditor,  with  a  power  to  sell  and  dispose  of  it,  and 
apply  the  property  to  the  payment  of  the  debt,  the  creditor,  in  exe- 
cuting such  power,  becomes  the  trustee  of  the  debtor,  and  is  bound 
to  act  bona  fide,  and  to  adopt  all  reasonable  modes  of  proceeding  in 
order  to  render  the  sale  most  beneficial  to  the  debtor,  like  any  other 

88  6  Boynton  v.  Pay  row,  67  Me.  587;  Briggs  v.  OUver,  68  N.  Y.  330,  339; 
VaupeU  V.  Woodward,  2  Saudf.  Ch.  (N.  Y.)  143;  Stokes  v.  Frazier,  72  111.  42S; 
Sitgreaves  v.  Farmei-s'  &  Mechanics'  Bank,  49  Pa.  St,  359;  Robinson  v.  Hur- 
ley, 11  Iowa,  410;    Arendale  v.  Morgan,  5  Sneed   (Tenn.)  703. 

889  Durant  v.  Einstein,  5  Rob.  (N.  Y.)  423;  Conyngham's  Appeal,  57  Pa.  St. 
474. 

88T  Carter  v.  Wake,  4  Cii.  Div.  605. 

88  8  Nelson  v.  Wellington,  5  Bosw.  (N.  Y.)  178;  Goldsmldt  v.  Trustees  of 
First  Methodist-Episcopal  Church  In  Worthington,  25  Minn.  202;  Chapman  v. 
Gale,  82  N.  H.  141, 

889  If  the  subject  of  a  pledge  Is  divisible,  and  the  pledgee  sells  more  than 
is  necessary  to  satisfy  the  debt,  he  Is  liable  In  damages  to  the  pledgor.  The 
pledgor's  acceptance  of  the  surplus  of  such  sale  will  not  defeat  his  right  to 
recover  such  damages,  and  the  measure  of  damages  is  the  difference  between 
the  price  for  which  the  excess  was  sold  and  the  price  necessarily  paid  by  the 
pledgor  to  replace  it.     Fitzgerald  v.  Blocher,  32  Ark.  742. 


170  BAILMKNTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

agent,  factor,  or  trustee  to  sell.^*"  So,  like  other  trustees,  he  cannot 
himself  directly  become  the  purchaser,  or  do  the  same  thing  through 
the  agency  of  another.^*^  The  pledgor  may,  however,  ratify  such 
a  sale,  as  in  other  cases.'** 

Sale  under  Statutes. 

In  a  number  of  states  sales  of  pledged  property  have  been  made 
the  subject  of  statutory  regulation."*  Some  of  these  statutes  pro- 
vide an  additional  mode  of  selling  the  pledge,  while  others  take 
away  the  power  to  sell  at  common  law,  or  under  a  power  of  sale,  and 
leave  only  the  statutory  method. 

TERMINATION  OF  PLEDGE. 

36.  A  pledge  may  be  terminated  inter  alia, — 

(a)  By  redelivery  to  pledgor  (p.  171). 

(b)  By  payment  or  performance  (p.  173). 

(c)  By  tender  (p.  175). 

(d)  By  sale  by  the  pledgee  (p.  176). 

(e)  By  conversion  by  the  pledgee  at  the  pledgor's  op- 

tion (p.  176). 

A  pledge  may  be  terminated  at  any  time  by  the  pledgee  releasing 
the  pledged  property,***  or  by  an  agreement  of  the  parties  that  the 

840  Howard  v.  Ames,  3  Mete.  (Mass.)  308,  311. 

»*i  Fitzgerald  v.  Blocher,  32  Ark.  742,  747. 

842  Stokes  V.  Frazier,  72  111.  428;  Chouteau  v.  Allen,  70  Mo.  290;  Hill  v. 
Finigan,  ti2  Cal.  426;    Childs  v.  Hugg,  41  Cal.  519. 

848  Arizona,  Oomp.  Laws  1877,  §§  3618,  3619.  California,  Civ.  Code,  §§  3005, 
3008;  St.  1886,  §§  3000,  3001.  Dakota,  Civ.  Code,  §§  1771-1782.  Connecticut, 
Act  1875,  c.  82;  Acts  1877,  c.  120.  Georgia,  Code  1873,  §  2140.  Louisiana, 
Rev.  Civ.  Code  1870,  p.  376,  art.  3105.  Maine,  Acts  1875,  c.  53.  Massachusetts, 
Gen.  St.  1860,  p.  767,  §§  9-11;  Pub.  St.  1882,  c.  192,  §§  10-12.  Missouri,  Rev 
St.  1879,  §  6409;  Laws  1879,  p.  162,  §  2.  New  Hampshire,  Gen.  Laws  1878,  p, 
333,  §§  3-8.  New  Jersey,  Revision  1877,  p.  812,  §§  3-5.  Rhode  Island,  Pub.  St 
1882,  c.  90,  §  4.  Tennessee,  Acts  1879,  c.  100,  §  4.  Texas,  Rev.  St.  1879,  p 
499,  §§  3499-3508.    Virginia,  Code  1873,  p.  334,  §  44. 

844  The  pledgee  of  goods  loses  his  lien  thereon  by  surrendering  possession  of 
them  to  a  third  person  and  taking  from  him  a  written  guaranty  of  the  debt 
But  such  third  person  acquires  a  new  lien  on  such  goods,  not  only  for  the 
security  of  his  own  debt  but  as  an  indemnity  against  the  liability  which  he 


§    36]  TERMINATION    OF    PLEDGE.  171 

pledge  shall  terminate.      Death  of  either  pledgor  or  pledgee  does  not 
terminate  the  pledge,"*'  nor  does  the  bankruptcy  of  the  pledgor.**' 
Reddivery  to  Pledgor. 

The  continued  possession  of  the  pledgee  is  necessary  for  the  exist- 
ence of  a  pledge,  and  a  redelivery  to  the  pledgor  will  terminate  it.* 
But  such  a  redelivery  for  a  mere  temporary  purpose,  as  for  shoeing 
a  horse  which  has  been  Pledg<^d  and  ia  nwiipj^  by^  tlip  fnrrier,  or  for 
repairing  a  carriage  which  has  been  pledged  and  is  owned  by_  the 

incurs  to  the  pledgee,  provided  the  pledgor,  who  is  indebted  to  him,  consents 
to  the  transaction  when  it  is  made,  or  i-atities  it  afterwards.  And,  when  the 
pledgor  was  absent  when  the  transaction  took  place,  but,  on  being  informed 
of  it  the  next  day,  expressed  his  gratification  with  the  arrangement,  tills  is  a 
sufficient  ratification  thereof.  Treadwell  v.  Davis,  34  Cal.  601.  Where  stock 
is  held  as  collateral  secui'ity  for  the  payment  of  a  promissory  note,  which  is 
indorsed  by  a  third  person,  and  the  holder,  without  the  consent  of  the  original 
owner  of  the  stock,  releases  the  indorser  for  the  purpose  of  making  him  a  wit- 
ness in  a  suit  in  equity  by  such  owner  for  the  recovery  of  the  stock,  the 
stock  will  be  thereby  released,  and  cannot  be  held  for  the  purpose  of  en- 
forcing payment  of  the  note.  Denny  v.  Lyon,  38  Pa.  St.  98.  Securities 
pledged  to  a  trust  company  as  collateral  to  its  Indorsements,  and  subsequently, 
with  the  assent  of  the  managing  officer  of  that  company,  rehypothecated  to 
secure  new  loans,  cannot  be  reclaimed  by  the  original  pledgee  as  security  for 
its  indorsements,  but  may  be  redeemed  by  it  from  the  second  pledgee,  and 
held  as  against  the  pledgor.  Manhattan  Trust  Co.  v.  Sioux  City  &  N.  R.  Co. 
(Cir.  Ct.)  65  Fed.  559. 

«*B  Unless  the  pledgor  had  only  a  life  interest  in  the  proi>erty  pledged. 
Hoare  v.  Parker,  2  Term  R.  376. 

846  Jerome  v.  McCarter,  94  U.  S.  734;  Yeatman  v.  Savings  Inst.,  95  U.  S. 
764;  Dayton  Nat.  Bank  v.  Merchants'  Nat.  Bank,  37  Ohio  St  208;  Dowler  v. 
Cushwa,  27  Md.  354.  Where  a  deposit  with  a  correspondent  has,  long  prior 
to  the  commission  of  au  act  of  insolvency  by  a  national  bank,  been  pledged 
to  secure  loans  made  to  the  insolvent  by  its  correspondent,  neither  the  subse- 
quent insolvency  of  the  bank  nor  the  appointment  of  a  receiver  destroys  the 
lien  of  the  correspondent  on  the  deposit.  Bell  v.  Hanover  Nat.  Bank  (Cir.  Ct) 
57  Fed.  821. 

♦  Fletcher  v.  Howard,  2  Alkens  (Vt)  115;  Grinnell  v.  Cook,  3  Hill  (N.  Y.) 
485;  Look  v.  Comstock,  15  Wend.  (N.  Y.)  244;  Black  v.  Bogert,  65  N.  Y.  GOl; 
McFarland  v.  W^heeler,  26  Wend.  (N.  Y.)  467;  Walker  v.  Staples,  5  Allen 
(Mass.)  34;  Holmes  v.  Crane,  2  Pick.  (Mass.)  607,  610;  Bonsey  v.  Amee,  8 
Pick.  (Mass.)  236,  237;  Jarvis  v.  Rogers,  15  Mass.  389;  Kimball  v.  Hildreth. 
8  Allen  (Mass.)  167;  Beeman  v.  Lawton,  37  Me.  543;  Collins  v.  Buck,  63  Me. 
459;  Treadwell  v.  Davis,  34  Cal.  601;   Russell  v.  Fillmore,  15  Vt  130.  135. 


172  BAILMENTS    FOR    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

carriage  maker,  does  not  flmnnnt  to  an  intprmption  of  the  pledgee^s 
possession.  The  owner  is  but  a  mere  special  bailee  for  the  cred- 
itor.! So,  when  the  debtor  is  employed  in  the  creditor's  service, 
his  temporary  use  of  the  pledged  article  in  the  creditor's  business 
does  not  effect  a  restoration  of  the  possession  to  the  debtor.  In 
Reeves  v.  Capper,t  a  sea  captain  pledged  his  chronometer  for  a 
debt.  He  was  afterwards  employed  by  the  pledgee  as  master  of  one 
of  his  ships,  and  the  chronometer  was  placed  in  his  charge,  to  be 
used  on  the  voyage.  It  was  held  that  the  possession  of  the  pledge 
was  not  lost.  The  pledgee  recovered  the  chronometer  against  a 
person  to  whom  the  master  pledged  it  a  second  time.  In  these  cases 
of  redelivery  to  the  pledgor  for  a  special  and  temporary  purpose,  it 
is  well  established  that  the  pledgor  may,  for  such  special  purpose, 
hold  the  possession  as  agent  of  the  pledgee.  Some  of  the  courts 
and  text  writers  have  gone  so  far  as  to  say  that  there  might  be  a 
redelivery  to  the  pledgor  to  hold  the  pledged  goods  generally,  as 
agent  of  the  pledgee.  ^ch.a..redeliver;^may  not  divest  the  pledgee's 
rights  against  the  pledgor,  but  possession  so  held  cannot  be  good 
_against  third  persons  acquiring  rights  without  notice,  and  no  case 
can  be  founTwEicli  so  decides.  But  on  the  contrary,  such  attempts 
to  make  the  pledgor  agent  to  take  and  keep  the  property  for  the 
pledgee  have,  in  a  number  of  cases,  been  held  void  as  against  the 
rights  of  others  acquired  on  the  strength  of  the  pledgor's  posses- 
sion.** 

t  Casey  v.  Cavaroc,  96  U.  S.  467;  Hays  v.  Riddle,  1  Sandf.  (N.  Y.)  248; 
Way  v.  Davidson,  12  Gray  (Mass.)  465;  Macomber  v.  Parker,  14  Pick.  (Mass.) 
497;  Tliayer  v.  D wight,  104  Mass.  254;  Walker  v.  Staples,  5  Allen  (Mass.)  34, 
35;  Hutton  v.  Arnett,  51  111.  198;  Cooper  v.  Ray,  47  111.  53;  Martin  v.  Reid, 
11  C.  B.  (N.  S.)  730.     But  see  Bodenhammer  v.  Newsom,  5  Jones  (N.  C.)  107. 

t  5  Ring.  N.  C.  136. 

••  First  Nat.  Bank  v.  Nelson,  38  Ga.  391;  Calhoun  v.  Bank,  42  S.  O.  357,  20 
S.  E.  153;  Geddes  v.  Bennett,  6  La.  Ann.  516,  Conger  v.  City  of  New 
Orleans,  32  La.  Ann.  1250;  Fletcher  v.  Howard,  2  Aikens  (Vt.)  115;  Day 
V.  Swift,  48  Me.  368;  Shaw  v.  Wilshire,  65  Me.  485;  Barrett  v.  Cole,  4 
Jones  (N.  C.)  40;  Smith  v.  Sasser,  Id.  43;  Bodenhammer  v.  Newsom,  5 
Jones  (N.  C.)  107;  Treadwell  v.  Davis,  34  Cal.  601.  Compare  Martin  v. 
Reid,  11  O.  B.  (N.  S.)  750;  Johnson  v.  Smith,  11  Humph.  (Tenu.)  396 
(dictum);  Cooper  v.  Ray.  47  111.  53;  Wyeth  v.  National  Market  Bank  of 
Brighton,  132  Mass.  597;  Citizens'  Nat.  Bank  of  Baltimore  v.  Hooper,  47  Md. 
88.    But  see  Ex  parte  Fitz,  2  Lowell,  519,  Fed.  Cas.  No.  4,837. 


§    30]  TERMINATION    OF    PLEDGE.  173 

Payment  or  Performance. 

The  normal  way  of  putting  an  end  to  a  pledge  is  by  the  perform- 
ance by  the  pledgor  of  the  engagement  secured.  When  the  pledge 
is  to  secure  a  debt,  pa}Tnent  of  the  debt  and  any  expenses  incurred 
will  terminate  the  pledge  and  discharge  the  lien.'*''  If  the  pledgee 
sues  on  the  debt,  and  his  judgment  is  satisfied  by  the  sale  on  execu- 
tion of  other  property,  this  is  such  a  payment  as  terminates  the 
pledge.'** 

Sam£ — Apj)lication  of  Payments. 

When  more  than  one  debt  is  secured  by  the  same  pledge,  ques- 
tions sometimes  arise  as  to  how  payments  shall  be  applied,  especially 
in  cases  of  involuntary  payment.  If  the  debts  were  contracted  at 
divers  times  upon  the  security  of  the  same  pledge,  so  that  the 
debtor  had  pledged  for  the  last  debts  what  should  remain  of  the 
pledge  after  payment  of  the  first,  the  moneys  arising  from  the 
pledges  would,  in  this  case,  be  applied,  in  the  first  place,  to  the  dis- 
charge of  the  debt  of  the  oldest  standing.**^  When  the  pledgor 
makes  a  payment,  he  may  direct  its  api)lication  to  whatever  indebt- 
edness he  sees  fit.""*  If  he  neglects  to  make  such  an  application, 
the  pledgee  may  do  so.'*^ 

34T  As  to  what  constitutes  payment,  see  Clark,  Cent.  629;  Cross  v.  EiMcka  L.  & 
Y.  Canal  Co.,  73  Cal.302, 14  Pac.  885;  Gilpen  v.  Leksell,  54  Kau.  U74,  3'J  I'ac.  ITC; 
CaUanan  v.  Smart,  60  Iowa,  305,  14  N.  W.  328;  Ward  v.  Ward,  37  Mich.  253: 
Merrlfield  v.  Baker,  9  Allen  (Mass.)  29;  Lapping  v.  Duffy,  65  Ind.  229;  Comp- 
ton  V.  Jones,  65  Ind.  117;  Bacon  v.  Lamb,  4  Colo.  578;  Strong  v.  Wooster.  6 
Vt.  536. 

8*8  A  pledgee  may,  by  his  misconduct  with  respect  to  the  thing  pledged,  be- 
come liable  to  the  pledgor  for  depreciation  or  loss  in  value  iu  consequence  of 
his  negligence,  but  when  the  value  of  the  thing  pledged  is  lost  through  the 
negligence  of  the  pledgee,  it  does  not  operate,  ipso  facto,  as  a  satisfaction  or 
extinction  of  the  debt  to  the  extent  of  the  loss.  Cooper  v.  Simpson.  41  Minn. 
40,  42  N.  W.  001.  Money  collected  by  a  creditor  on  a  note  received  as  collat- 
eral security,  which  the  creditor  has  power  to  convert  into  money,  operates, 
pro  tanto,  as  payment  of  the  secured  debt.  Hum  v.  Nevers,  15  Pick.  (Mass.) 
600. 

848  Jones  V.  Benedict,  83  N.  Y.  79. 

3  60  Clark,  Cont.  p.  634,  and  cases  cited. 

861  Wilcox  V.  Falrhaven  Bank,  7  Allen  (Masa)  270;  Pattlson  v.  Hull,  9 
Cow.  (N.  Y.)  747. 


174  BAILMENTS    FOB    MUTUAL    BENEFIT PLEDGE.  [Ch.   4 

Same — Subrogation  of  Sureties  of  Pledgor. 

It  is  an  established  rule  of  equity  that  a  surety  who  has  paid  the 
debt  of  his  principal,  either  voluntarily  or  by  compulsion,  is  entitled, 
for  his  indemnity,  to  any  property  pledged  or  collateral  security 
given  therefor  by  the  principal  to  the  creditor.  But,  as  this  rule  is 
founded  on  the  principles  of  reason  and  justice,  and  not  upon  any 
contract  or  stipulation  to  that  effect  between  the  parties,  it  follows, 
as  a  necessary  consequence,  that  a  surety  is  not  to  be  substituted  in 
the  place  of  the  creditor,  unless,  from  the  circumstances  of  the  case, 
it  is  shown  that  it  is  just  and  reasonable  that  he  should  be.  Hence, 
it  is  obvious  that,  in  order  to  become  entitled  to  such  substitution, 
he  must  first  pay  the  whole  of  the  debt  or  debts  for  which  the  prop- 
erty is  mortgaged  or  the  collateral  security  is  given  to  the  creditor ; 
for  it  would  be  manifestly  unjust,  and  a  plain  violation  of  his  rights, 
to  compel  him  to  relinquish  any  portion  of  the  property  before  the 
obligation  for  the  performance  of  which  it  was  conveyed  to  him  as 
security  had  been  fully  kept  and  complied  with.^'^  Such  previous 
payment  by  the  surety  is  alike  essential  where  there  is  only  one  debt 
and  one  surety,  and  where  there  are  many  debts,  all  of  which  are 
equally  protected  and  secured  by  the  property  pledged,  and  many 
several  sureties  of  the  several  debts;  for  the  chief  and  primary  ob- 
ject of  a  pledge  to  a  creditor  is  his  benefit,  protection,  and  advantage 
in  reference  to  each  and  all  of  the  several  debts  which  it  was  made 
or  given  to  secure.  And,  until  this  object  is  fully  accomplished,  no 
surety  can  justly  or  lawfully  interfere  to  disturb  him  in  the  posses- 
sion of  the  property  pledged,  or  hinder  him  from  appropriating  the 
proceeds  of  it  towards  payment  of  any  such  debt  which  he  cannot 
otherwise  collect  or  render  available.  And  if  there  be  one  or  more 
debts  thus  secured  for  which  the  debtor  alone  is  responsible,  and 
the  amount  of  which  cannot  be  obtained  from  him  on  account  of  his 
insolvency  or  pecuniary  inability,  such  proceeds  may  be  applied,  as 
far  as  is  necessary  for  that  purpose,  to  the  payment  and  discharge  of 
such  debts,  and  to  that  extent  the  sureties  upon  notes  constituting 
other  debts  can  have  no  interest  in  or  right  to  the  pledged  prop- 
sea  Richardson  v.  Washington  Bank,  3  Mete.  (Mass.)  536,  541;  CJopIs  v.  Mid- 
dleton,  1  Turn.  &  R.  224;  Hodgson  v.  Shaw,  3  Mylne  &  K.  183;  Wiloox  v.  Fair- 
haven  Bank,  7  Allen  (Mass.)  270. 


§    .30]  TERMINATION    OF    PLEDGE.  175 

erty.  But  the  several  sureties,  or  any  one  of  them,  may,  If  they 
choose  to  do  so,  pay  all  the  debts  secured  by  pledge,  and  then 
be,  or  they  will  be  entitled  to  be,  substituted  in  the  place  of  the 
creditor.  If  the  payment  be  made  by  one  of  them  only,  he  will 
hold  the  property,  subject  to  the  rights  of  the  others  to  come  in  and 
pay  the  amount  of  their  respective  liabilities,  for  his  own  indemnity. 
If  it  be  made  by  all  of  them,  the  payment  will  operate  as  a  redemp- 
tion of  the  property  for  their  common  benefit,  and  the  proceeds  will 
be  held  to  be  distributed  among  them  in  proportion  to  the  amount 
of  their  respective  liabilities.  But,  until  the  whole  of  the  debts  due 
the  creditor,  and  secured  by  the  pledge,  are  paid  or  offered  to  b<- 
paid  to  him  by  all,  or  by  some  one,  of  the  sureties,  he  has  an  un- 
doubted right  to  the  possession  and  control  of  the  pledged  proj* 
erty,  and  no  proceedings  can  be  had  against  him  in  reference  to  its 
disposal  or  appropriation.^'" 

Tender. 

If  a  pledgee  refuse  to  deliver  the  property  pledged  for  the  security 
of  his  debt,  on  tender^"*  of  the  amount  due,  or  other  performunci-. 
and  the  property  being  demanded,  his  special  property  then  ceases, 
and  he  becomes  a  wrongdoer, — is  guilty  of  conversion  to  his  own  use, 
for  which  the  action  of  trover  lies.^*"^  The  tender  places  the  par- 
ties, in  relation  to  the  property  pledged,  as  though  payment  of  the 
debt  had  been  made.  The  pledgee  no  longer  has  any  lien  for  the 
debt,  but  the  parties  stand  in  the  same  relation  as  though  no  pledge 
had  ever  been  made.^"**      The  consequence  is  that,  although  the  debt 

8BS  Wilcox  V.  Fairhaven  Bank,  7  Allen  (Mass.)  270. 

8  64  As  to  what  constitutes  a  valid  tender,  see  Clark,  Cont  639.  A  mere  offer 
to  pay  is  not  a  tender.  Lewis  v.  Mott,  36  N.  Y.  395.  Compare  Cumnock  v. 
Institution  for  Savings  In  Newburyport,  1-12  Mass.  342,  7  N.  E.  SGl>. 

8 6B  Loughborough  v.  McNevin,  74  Cal.  250.  14  Pac.  369.  and  15  Pac.  773; 
Ball  V.  Stanley,  5  Yerg.  (Tenn.)  199. 

868  Haskins  v.  KeUy,  1  Rob.  (N.  Y.)  160;  McCalla  v.  Claj-k.  65  Ga.  53; 
Mitchell  V.  Roberts,  17  Fed.  776;  Humphrey  v.  County  Nat.  Bank  of  Clear- 
field, 113  Pa.  St.  417,  6  Atl.  155;  Loughborough  v.  McNevin,  74  Cal.  250,  14 
Pac.  369,  and  15  Pac.  773;  Norton  v.  Baxter,  41  Minn.  146,  42  N.  W.  865;  Hickj 
V.  National  Life  Ins.  Co.,  9  C.  C.  A.  215,  GO  Fed.  690;  Hyaras  v.  Bam- 
berger, 10  UtaJi,  3,  36  Pac.  202.  Pledgee  is  answerable  for  depreciation  in 
value  of  pledged  property,  after  he  has  refused  to  accept  a  valid  tender  o^ 
the  debt,  and  a  demand  for  the  possession  of  the  property;    and  this  Is  equsi- 


176  BAILMENTS    FOR    MUTUAL    BENEFIT— PLEDGE.  [Ch.    4 

remains,  for  which  the  pledgee  has  a  right  of  action,  yet  the  pledgor 
has  a  right  of  action  for  the  pledged  property."*' 

Sale. 

A  sale  of  the  pledged  property  by  the  pledgee,  in  any  of  the  ways 
already  pointed  out,  terminates  the  pledge.  But,  as  has  been  stated, 
if  the  pledgee  attempts  to  become  the  purchaser,  the  pledgor  may 
treat  the  sale  as  of  no  effect  and  the  pledge  as  continuing.^'^' 

Conversion  by  the  Pledgee. 

If  the  pledgee  refuses  to  redeliver  the  pledge  upon  payment  or 
tender,  he  is  guilty  of  conversion,  unless  there  are  circumstances 
excusing  him;  for  instance,  if  he  has  been  sued  by  a  third  person 
claiming  the  pledged  property  as  owner,  a  refusal  to  deliver  to  the 
pledgor  until  the  rights  of  the  two  claimants  are  settled  is  not  a 
conversion.  For  to  deliver  the  property  to  the  pledgor  would  be  a 
conversion  as  against  the  other  claimant,  if  he  should  establish  that 
he  had  title  to  the  property.^^^  So  the  pledgee  may  deliver  the 
pledge  to  one  who  is  the  real  owner  without  becoming  liable  to  the 
pledgor  for  conversion,  because  the  real  owner  has  a  right  to  the 
possession  of  the  property.^®''  The  measure  of  damages  for  a  con- 
version has  already  been  discussed.^®^ 

ly  true  whether  an  action  Is  brought  against  him  as  for  a  conversion,  or  a  bill 
Is  filed  against  him  to  redeem  from  the  pledge.     Loughborough  v.  McNevin, 
74  Cal.  250,  14  Pac.  369,  and  15  Pac.  773. 
8  67  Ball  v.  Stanley,  5  Yerg.  (Tenn.)  199. 

358  Ante,  p.  168. 

359  Cass  V.  Higenbotam,  27  Hun  (N.  Y.)  406,  403. 

360  The  Idaho,  93  U.  S.  575;  Bates  v.  Stanton,  1  Duer  (N.  Y.)  79;  Pitt  v.. 
Albrltton,  12  Ired.  (N.  O.)  74;  Hay  den  v.  Davis,  9  Cal.  573.  But  see  Sharpe 
T.  National  Bank  of  Birmingham,  87  Ala.  644,  7  South.  106. 

••1  Ante,  p.  160. 


§   37]  BAILMENTS    FOR    MUTUAL    BENEFIT HIRLNQ.  177 

CHAPTER  V. 

BAILMENTS  FOR  MUTUAL  BENEFIT— HIRINO. 

37.    Locatio,  or  Hiring. 
88-39.    Establishment  of  Relation. 

40.  Rights  and  Liabilities  of  Parties. 

41.  Locatio  Rei,  or  Hire  of  Things  for  Use. 

(a)  Right  to  Use. 

(b)  Special  Property  of  Bailee— Right  of  Actkm. 

(c)  When  Bailee  has  Assignable  Interest 

(d)  Warranty  of  Title  and  Right  of  Possession. 

(e)  Bailor  must  Warn  Bailee  of  I>efects. 

(f)  Liability  to  Third  Persons  for  Negligence, 

(g)  Incidental  and  Elxtraordinary  Expenses, 
(h)  Liability  to  Bailor  for  Negligence. 

(1)    Liability  for  Acts  of  Servants,  etc 
0")    Redelivery, 
(k)    Compensation. 
42-44.  Locatio  Opens,  or  Hire  of  Lalwr  and  Services. 

(a)  Special   Property   of   Bailee— Right   of   AjeOon— 

Insurable  Interest. 

(b)  Compensation. 

(c)  Expense  of  Eixecuting  Bailment. 

(d)  Lien. 

(e)  Title  to  Materials  Used  in  Repairing. 

(f)  Liability  to  Bailor  for  Negligence. 

45.  Specific  Bailments  Considered. 

(a)  Warehousemen. 

(b)  Forwarding  Merchants. 

(c)  Wharfi.ngers. 

(d)  Safe-Depodt  Companies. 

(e)  Agisters. 

(f)  Factors  and  other  Bailiffs. 

46.  Termination  of  Relation. 

47.  Redelivery. 

LOCATIO,  OR  HIRING. 

87.  Locatio,  or  hiring,  is  a  bailment  in  \ehich  compensa- 
tion is  to  be  given  for  the  use  of  a  thing,  or  for 
labor  and  services  about  it. 

LAW  BAILM. — 12 


178  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.  5 

Bailments  for  hire  were  called  in  the  Roman  law  "locatio,"  or 
**locatio-condactio,"  both  words  being  used  indifferently  to  signify 
the  same  thing.^  It  is  a  contract  whereby  the  use  of  a  thing,  or 
the  services  and  labor  of  a  person,  are  stipulated  to  be  given  for  a 
certain  reward.*  Pothier  defines  it  to  be  a  contract  by  which  one 
of  the  contracting  parties  engages  to  allow  the  other  to  enjoy  or  use 
the  thing  hired,  during  the  stipulated  period,  for  a  compensation, 
which  the  other  party  engages  to  pay.'  A  definition  substantially 
the  same  will  be  found  in  other  writers.*  Lord  Holt  has  defined  it 
to  be  "when  goods  are  left  with  the  bailee  to  be  used  by  him  for 
hire.""  The  objection  to  this,  as  well  as  to  the  definition  of  Pothier, 
is  that  it  is  incomplete,  and  covers  only  cases  of  the  hire  of  a  thing 
(locatio  rei),  and  excludes  all  cases  of  the  hire  of  labor  and  services, 
and  of  the  carriage  of  goods.  Mr.  Bell  defines  it,  with  great  exact- 
ness, thus:  "Location  is,  in  general,  defined  to  be  a  contract,  by 
which  the  temporary  use  of  a  subject,  or  the  work  or  service  of  a 
person,  is  given  for  an  ascertained  hire." '  At  the  common  law  it 
may  properly  enough  be  defined  to  be  a  bailment  of  a  personal  chat- 
tel, where  a  compensation  is  to  be  given  for  the  use  of  the  thing,  or 
for  labor  or  services  about  it;  or,  in  other  words,  it  is  a  loan  for 
hire,  or  a  hiring  or  letting  of  goods,  or  of  labor  and  services,  for  a 
reward.^ 

We  are  accustomed,  in  the  common  law,  to  use  words  correspond 
ing  to  those  of  the  Roman  law,  almost  in  the  same  promiscuous  man 
ner.  Thus,  letting  ("locatio")  and  hiring  ("conductio")  are  precise 
equivalents,  used  for  the  purpose  of  distinguishing  the  relative  situ- 
ation of  different  parties  to  the  same  contract.  The  letter,  called 
in  the  civil  law  'locator,"  and  in  the  French  law  'locateur,"  'loueur," 
or  "bailleur,"  is  he  who,  being  the  owner  of  the  thing,  lets  it  out  to 

1  Ayliffe,  Pand.  bk.  4,  tit.  7,  p.  460. 

*  Wood,  Inst  bk.  3,  pp.  235,  236,  c  5;   1  Domat,  bk.  1,  tit  4,  §  1,  art.  L 
»  Poth.  Contrat  de  Louage,  note  1. 

*  1  Domat,  bk.  3,  tit  4,  §  1,  art.  1.  See,  also,  Code  Civil  of  France,  arts. 
1709,   1710. 

8  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  913. 

*  1  Bell,  Comm.  (4th  Ed.)  §§  19S,  385;   Id.  (5th  Ed.)  pp.  255,  451. 

T  2  Kent,  Comm.  lect  40  (4th  Ed.)  p.  585;  1  Bell,  Comm.  (5th  Ed.)  pp.  255, 
461;  1  Bell,  Comm.  (4th  Ed.)  §§  198,  385.  See,  also,  Monthly  Law  Mag.  (Lon- 
doa)  for  April,  1839,  pp.  217-219;   Story,  Bailm.  §  368. 


§§    38-39]  ESTABLISHMENT    OF    RELATION.  179 

another  for  hire  or  compensation;  and  the  hirer,  called  in  the  drll 
law  "conductor,"  and  in  the  French  law  "conducteur,"  "preneur," 
"locataire,"  is  he  who  pays  the  compensation,  having  the  ben«^nt  of 
the  use  of  the  thing.* 

It  must  be  borne  in  mind  that  the  terms  "letter"  and  "hirer"  do  not 
invariably  refer  to  either  the  bailor  or  the  bailee.  The  letter  is  not 
always  the  bailor,  and  the  hirer  is  not  always  the  bailee.  Thus, 
one  who  procures  a  horse  from  a  livery  stable  to  ride  is  the  bailee 
and  the  hirer,  while  the  livery  stable  keeper  is  the  bailor  and  letter. 
But  one  who  boards  his  horse  at  a  livery  stable  is  the  bailor  and 
hirer,  while  the  livery  stable  keeper  is  now  the  bailee  and  the  letter. 
The  hirer  is  the  one  who  pays  the  compensation,  and  receives  the 
immediate  benefit  of  the  bailment. 


ESTABLISHMEI^rT  OF  BEIxATION. 

38.  Bailments  for  hire  may  be  created: 

(a)  By  contract  (p.  181). 

(b)  By  operation  of  la-w  (p.  182). 

39.  In  addition  to  the  elements  necessarily  present  in  ev- 

ery bailment,  bailments  for  hire  must  be  undertaken 
in  consideration  of  a  recompense. 

Bailments  for  hire  differ  very  little  from  gratuitous  bailments 
either  in  their  manner  of  creation,  or  in  their  purposes.  The  sole 
additional  requisite  is  that  the  bailment  be  undertaken  or  created 
in  consideration  of  a  recompense  or  price.®  Thus,  in  the  case  of  a 
simple  deposit,  if  a  price  is  to  be  paid  for  the  keeping,  the  char- 

8  Story,  BaUm.  §  309;  Wood,  Inst  bk.  3,  p.  236,  c.  5;  Poth.  Contrat  de 
Louage,  note  1;  1  Domat,  bk.  1,  tit  4,  §  1,  art  2;  Heinecc  Pand.  lib.  19,  tit 
2,  §  318;  Jones,  Bailm.  90;   Wood,  Inst  Civ.  Law,  236. 

9  In  every  bailment  of  letting  for  hire,  a  price  or  compensation  for  the  hire 
is  essentiaL  The  amount  may  not  be  stipulated,  but  the  contract  most  eon- 
template  payment  Herryford  v.  Davis,  102  U.  S.  23o.  In  the  absence  of  an 
agreement  to  the  contrary,  the  law  implies  an  agreement  to  pay  a  reasona- 
ble sum  for  the  use  of  a  thing.  Cullen  v.  Lord,  39  Iowa,  302;  Gray  ▼.  Mis- 
souri River  Packet  Co.,  64  Mo.  47. 


180  BAILMENTS    FOB    MUTUAL    BKNEFIT HIRINa.  [Ch.   5 

acter  of  the  bailment  is  changed.  It  is  no  longer  a  depositnm,  but 
becomes  a  locatio  custodise,  or  a  hiring  of  custody.  So,  also,  if  a 
loan  for  use  is  gratuitous,  it  is  a  commodatum,  but,  if  it  be  for  a 
price,  it  is  a  locatio  rei,  or  the  hiring  of  a  thing ;  and  what  would  be 
a  mandate,  if  it  were  not  for  the  consideration,  is  a  hiring  of  work 
and  labor,  or  the  hiring  of  carriage.  Recompense  or  no  recompense 
refers,  not  to  the  result  of  the  undertaking,  but  to  mutual  expecta- 
tion at  the  outset.^" 

It  is  not  necessary  that  a  specific  price  should  be  expressly  agreed 
on,  for  it  may  be  tacitly  implied.  When  the  labor  is  to  be  per- 
formed by  an  artisan,  if  no  express  price  is  agreed  on,  he  is  tacitly 
presumed  to  engage  for  the  usual  price  paid  for  the  like  service  at 
the  same  place,  according  to  the  general  custom  of  the  trade,  or, 
which  is  the  same  thing,  to  pay  what  it  is  fairly  worth  there.  So, 
in  cases  of  hiring  the  use  of  a  thing,  the  customary  price  is,  in 
the  absence  of  all  positive  engagements,  presumed  to  be  that  which 
is  agreed  to  be  given;  and,  if  no  price  is  fixed  by  custom,  then  a 
reasonable  price  is  to  be  allowed.^^ 

10  Schouler,  Bailm.  (2d  EJd.)  §  98.  Where  a  bailee  takes  a  horse  to  care  for, 
and  is  to  have  the  use  of  the  horse  in  consideration  of  his  keep,  the  bailment 
is  one  for  hire.  Chamberlin  v.  Cobb,  32  Iowa,  161.  See,  also,  Francis  v. 
Shrader,  67  IlL  272;  White  v.  Humphery,  11  Q.  B.  Div.  43;  Gaff  v.  O'Neil,  2 
Ctn.  (Ohio)  246.  Where  one  entering  a  clothing  house  for  the  purchase  of  a 
suit  deposits  his  watch,  at  the  direction  of  the  salesman,  in  a  drawer,  pre- 
paratory to  trying  on  some  clothes,  the  jury  are  warranted  in  finding  that 
such  deposit  is  a  necessary  incident  of  the  business,  in  which  case  the 
clothier  becomes  a  bailee  for  hire,  bound  to  exercise  ordinary  diligence. 
Woodruff  V.  Painter,  150  Pa.  St  91,  24  Atl.  91.  A  merchant  who  sells  ready- 
made  cloaks  at  retail,  and  provides  mirrors  for  the  use  of  customers  while 
trying  them  on,  and  clerks  to  aid  in  the  process,  thereby  impliedly  invites  his 
customers  to  take  oflC  their  wraps  and  lay  them  down  in  the  store,  and  is 
bound  to  exercise  some  care  over  such  wraps.  Where  such  merchant  pro- 
vides no  place  for  keeping  such  wraps,  and  does  not  notify  customers  to  look 
out  for  their  wraps  themselves,  nor  give  any  direction  to  liis  clerks  on  the 
subject,  he  is  liable  for  the  loss  of  a  wrap  laid  on  the  counter  by  a  customer 
while  trying  on  a  cloak,  since  his  acts  show  that  he  exercised  no  care  what- 
ever. Bunnell  v.  Stem,  122  N.  Y.  539,  25  N.  E.  910;  ante,  p.  45,  "Gratuitous 
Bailments." 

11  Story,  Bailm.  §  375;  Schooler,  Bailm.  (2d  Ed.)  §  90. 


§§   38-39]  ESTABLISHMENT    OF    BELATIOK.  181 

By  Cuntract, 

It  follows  naturally  from  the  requirement  of  a  contemplated  con 
sideration,  to  be  paid  by  one  party  and  received  by  the  other,  that 
the  great  majority  of  bailments  for  hire  ai-e  founded  on  special 
contracts.^^.    Where  this  is  the  case  the  parties  must  mutually  aa 
sent  to  the  same  thing  in  the  same  sense.^'      Mistake  in  regard  to 
the  subject-matter  of  the  bailment,  its  purpose,  or  the  recompense, 
will  avoid  the  contract.^*      Thus,  if  I  agree  to  hire  a  certain  horse, 
and  the  bailor  understands  me  to  mean  a  different  horse,  there  is 
no  contract,  for  there  is  no  mutual  assent.^'      Fraud  or  duress  reu 
ders  the  contract  voidable.^'      The  contract  of  hire  may,  of  course, 
be  either  express  or  implied.      As  to  the  competency  of  parties,  the 
usual  rules  apply.     These  have  been  already  considered.^ ^     Th<' 
contract  must  not  involve  the  execution  of  an  unlawful  purpose,  or 
be  against  good  morals  and  public  policy.      Thus,  a  contract  for  ^ 
bailment  of  furniture  to  be  used  for  purposes  of  prostitution  is  void. 
So.  also,  are  contracts  to  suddIv  tools  tn  fif^mmit  burglary  with,  or    yy 
goods  to  aid  a  public  enemv.  or  for  the  purpose  of  smuggling.' '^^*'^ 
One  of  the  most  frequent  instances  in  which  this  question  arises 
is  where  a  horse  has  been  hired  for  use  on  Sunday.     In  such  cases 
the  right  of  either  party  to  redress  for  any  loss  or  injury  depends      . 
upon  whether  he  can  make  out  a  case  without  relying  upon  tin  y^y 
ijlegaJ  contract.     Ifhe  can,  he  may  recover,  tnougn  sncn  iiiegalit\ 
may  incidentally  appear.^'     "The  illegal  letting  may  or  may  not 
flj)p*^ar      If  it  does,  it  simply  explains  the  defendant's  possession. 
and  proves  that  it  was  by  the  owner's  permission,  at  least  for  a 
certain  purpose.     It  mav  give  the  defendant  an  opportunity  to  in- 
jure the  horse,  but  it  does  not  cause  the  injury;   nor  does  it  con 

12  Story,  Bailm.  §  372;    Schouler,  Bailm.  (2d  Ed.)  §  91. 
IS  Schouler,  Bailm.   (2d   Ed.)  §  91;    2  Schouler,  Pers.  Prop.  {  471;    Stor>'. 
Bailm.  §  378. 
1  *  Clark,  Cont.  289. 
IB  Schouler,  Bailm.  (2d  Ed.)  §  91. 
i«  Clark,  Cont.  346. 

17  Ante,  p.  IG. 

18  Story,  Bailm.  §  379;   Schouler,  Bailm.  (2d  Bd.)  §  92. 

!«>  Schouler,  Bailm.  (2d  Ed.)  §  140;  Hail  v.  Corcoran,  107  Mass.  251;  Stewart 
V.  Davis,  31  Ark.  518. 


182  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Gh.   5 

tribute  to  it,  in  such  a  sense  as  to  make  the  plaintiff  a  party  to  the 
wron^ul  act  If  it  does  not  appear,  before  the  defendant  can  arail 
himself  of  it  as  a  defense,  it  becomes  necessary  for  him  to  prore  tlie 
illegal  contract  to  which  he  was  a  party,  and  his  own  illegal  corn- 
duct  in  traveling  upon  the  Sabbath.  But  he  can  no  more  avail 
himself  of  that  as  a  defense  than  the  plaintiff  can  as  a  cause  of 
action.  Either  party  whose  success  depends  upon  proving  his  own 
violation  of  law  must  fail."  **• 

By  Operation  of  Law. 

Though  the  great  majority  of  bailments  for  hire  rest  upon  con- 
tract between  the  parties,  there  are  a  few  classes  of  quasi  bail- 
iiients  for  hire  which  may  arise  independently  of  the  bailor's  con- 
sent^ ^  Such  are  cases  of  possession  of  property  by  captors,**  by 
revenue  oflScers,^^  by  prize  agents,^*  by  officers  of  courts,*^  and  by 

2  0  Frost  V.  Plumb,  40  Conn.  Ill,  113. 

21  "Nor  should  it  be  thought  that  bailments  for  mutual  benefit  necessitate 
a  contract  and  mutual  terms.  *  ♦  ♦  There  may  exist  what  we  call  a 
■quasi  bailment,'  namely,  one  whose  conditions  are  satisfied  with  the  volun- 
tary acceptance  of  possession  by  one  who  expects  a  reward  for  his  service." 
Schouler,  Bailm.  (2d  Ed.)  §  94.  The  acceptance  may  be  either  actual  or  con- 
structive, but  unless  there  is  something  to  show  bailment,  knowledge,  and 
intent,  no  bailment  can  be  inferred.  Schouler,  Bailm.  (2d  Ed.)  §  100; 
Spangler  v.  Eicholtz,  25  111.  297;  Ck)x  v.  Reynolds,  7  Ind.  257;  Rodgers  v. 
Stophel,  32  Pa.  St.  Ill;   Feltman  v.  Gulf  Brewery,  42  How.  'Prac.  488. 

2  2  Story,  Bailm.  §  614;  The  Betsey,  1  W.  Rob.  Adm.  93,  96.  Captors  are 
bound  to  exercise  ordinary  care.  The  Maria,  4  W.  Rob.  Adm.  348,  350;  The 
Anne,  3  Wheat.  435;  The  George,  1  Mason,  24,  Fed.  Cas.  No.  5,328;  The  Live- 
ly, 1  Gall.  315,  Fed.  Cas.  No.  8,403. 

2  3  Burke  v.  Trevitt,  1  Mason,  96,  101,  Fed.  Cas.  No.  2,163. 

24  Story.  Bailm.  §  619;   The  Rendsberg,  6  C.  Rob.  Adm.  142. 

2  5  Story,  BaQm.  §§  124-135,  620.  See,  generally,  Burke  v.  Trevitt,  1  Mason, 
96,  101,  Fed.  Cas.  No.  2,163;  Browning  v.  Hanford,  5  Hill  (N.  Y.)  588,  592; 
Trotter  v.  White,  26  Miss.  SS,  93.  Ordinary  diligence  is  the  measure  of  lia- 
bility. Cross  V.  Brown,  41  N.  H.  283;  Blake  v.  Kimball,  106  Mass.  115; 
Aurentz  v.  Porter,  56  Pa.  St.  115;  Burke  v.  Trevitt,  1  Mason,  96,  Fed.  Cas. 
No.  2,163;  The  Rendsberg,  6  C.  Rob.  Adm.  142.  The  same  rules  apply  to  re- 
ceivers and  other  depositaries  appointed  by  courts.  Story,  Bailm.  §  621; 
Kjiight  V.  Plimouth,  3  Atk.  480;  Beauchamp  v.  Silverlock,  2  Rep.  Ch.  5; 
Horsely  v.  Chaloner,  2  Ves.  Sr.  83;  Rowth  v,  Howell,  3  Ves.  566;  Wren  v. 
Kirton^  11  Ves.  377. 


§§    38-39]  ESTABLISHMENT    OF    RELATION.  183 

salvors."     All  these  are  treated  as  quasi  bailees,  or  depositariea 
for  hire.^^ 

General  Requisites. 

It  is  unnecessary  to  enumerate  at  length  all  the  requisites  of  bail- 
ments for  hire.  With  the  exception  of  the  recompense,  they  are 
the  same  as  in  the  case  of  gratuitous  bailments.  The  subject-mat- 
ter must,  of  course,  be  personal  property,  but  it  may  be  either  cor- 
poreal or  incorporeal.^®  It  must,  however,  be  in  esse.  A  chattel 
not  in  existence  cannot  be  the  subject-matter  of  a  present  under- 
taldng  for  hire.^'  There  must,  of  course,  be  a  delivery  and  a  con- 
templated redelivery,  or  delivery  over,  at  the  termination  of  the 
bailment^"  The  contract  of  hire  does  not  itself  constitute  a  bail- 
ment. The  bailment  has  its  inception  only  when  the  contract  is 
consummated  by  a  delivery  in  accordance  with  its  terms.^^  Until 
delivery,  there  is  no  bailment,  but,  at  most,  only  a  right  to  a  bail- 
ments^ The  delivery  may  be  contemporaneous  with  the  contract, 
or  subsequent  thereto.  The  parties,  however,  acquire  mutual  rights 
and  liabilities  as  soon  as  the  contract  is  made.  Both  parties  are 
bound,  and  either  is  liable  for  breach  of  contract  if  he  fails  to  carry 
out  his  part  of  the  agreement.  Tn  nthpr  ^r>r^ls,  gither  oartv  is  lia 
ble  for  nonfeasanca*^      Delivery  and  acceptance  may  be  actual  or 

««  Salvors  are  entitled  to  compensation  for  their  services.  This  compensa- 
tion is  called  "salvage,"  and  renders  the  bailment  one  for  hire.  Story,  Bailm. 
§  622;  Abbott,  Shipp.  (5th  Ed.)  pt.  3,  c.  10,  §§  1,  2;  In  re  Cargo  ex  Schiller,  2 
Prob.  Div.  145. 

27  Schouler,  Bailm.  (2d  Ed.)  §  94.  See,  also,  Witowski  v.  Brennan,  41  N. 
Y.  Super.  Ct.  2S4;  Phelps  v.  People,  72  N.  Y.  334;  Cross  v.  Brown,  41  N.  IL 
283. 

2  8  Ante,  p.  10. 

2  9  Story,  Bailm.  §  373;  Schouler,  B;iilm.  (2d  Ed.)  §  89. 

80  Ante,  p.  10. 

31  Ante,  p.  13. 

32  Schouler,  Bailm.  p.  102.  See,  also,  Klsoe  v.  Gatward,  5  Term  R.  143; 
Thorne  v.  Deas,  4  Johns.  84. 

33  Story,  Bailm.  §§  384,  43G;  2  Kent,  Comni.  570;  Schouler,  Bailm.  (2d  Ed.) 
§  100.  See  Thorne  v.  Deas,  4  Johns.  (N.  Y.)  84;  Elsee  v.  Gatward,  5  Term 
R,  143;  Balfe  v.  West,  13  C.  B.  406.  "In  cases  of  nondelivery  of  the  thing 
by  the  letter,  whether  it  arises  from  his  mere  refusal,  or  from  his  subsequent 
sale  or  transfer  thereof  to  another  person,  or  from  his  having  stipulated  for 
the  delivery  of  a  thing  of  which  he  is  not  the  owner,  and  over  which  he  has 


184  BAILMENTS    FOB    MUTUAL    BENEFIT HIRING.  [Oh.   5 

constmctive,  and  may  be  through  the  medium  of  agents.     The  par- 
ties may  act  in  a  personal  or  representative  capacity.'* 


t4^ 


RIGHTS  AND  LIABILITIES  OF  PARTIES. 

40.  With  respect  to  the  rights  and  liabilities  of  the  parties 

thereto,  bailments  for  hire  may,  for  convenience  of 
treatment,  be  divided  into  two  classes,  viz.: 

(a)  Locatio  rei,  or  hire  of  things  (p.  184). 

(b)  Locatio  operis,  or  hire  of  labor  and  services  in  regard 

to  things  (p.  212). 

SAME— LOCATIO  REI,  OR  HIRE  OP  THINGS  FOR  USE. 

41.  Where  things  are  hired  for  use  the  rights  and  liabili- 

ties of  the  parties  are  controlled  primarily  by  the 
contract  of  hiring.  But,  unless  varied  by  the  special 
contract,  the  normal  rights  and  liabilities  of  the  par- 
ties are  as  follows: 

(a)  A  bailee  is  entitled  to  use  the  property  during  the 

time,  for  the  purpose,  and  in  the  manner  for  which 
it  was  hired,  and  only  for  such  time,  purpose,  and 
in  such  manner  (p.  186). 

(b)  The  bailee  acquires  a  special  property  in  the  thing 

hired,  while  the  general  ownership  remains  in  the 
bailor.    Either  party  may  maintain  an  action  against 

not  any  control,  a  right  of  action  accrues  to  the  hirer.  But  by  the  French 
law,  If  the  nondelivery  is  prevented  by  inevitable  casualty  or  superior  force, 
as  If  it  perishes,  no  such  action  lies;  for  in  that  law  the  rule  is,  'Impossi- 
bilium  nulla  obligatio  est'  But  in  all  these  cases  the  hirer  may,  if  he  chooses, 
treat  the  contract  as  rescinded;  and,  if  he  has  paid  any  consideration  there- 
for, he  may  recover  it  back.  On  the  other  hand,  if  the  letter  offers  to  de- 
liver the  thing  in  an  injured  or  broken  or  altered  state  from  what  it  was 
at  the  time  of  the  hiring,  the  hirer  is  not  bound  to  receive  it,  but  he  is  enti- 
tled to  insist  upon  rescinding  the  contract.  And  in  such  a  case  It  will  make 
no  difference  whether  the  injury  or  deterioration  was  by  inevitable  accident, 
or  by  any  other  cause."  Story,  Bailm.  §  384. 
«*  Ante,  p.  18. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIES LOCATIO    BKI.  185 

the  third  person  for  any  tortious  interference  with 
the  property  (p.  196). 

(c)  Where   bailments   for  hired  use  are  not  personal  to 

the  bailee,  the  bailee  has  an  assignable  interest  in 
the  property  hired  (p.  197). 

(d)  The  bailor  warrants  the  title  and  right  of  possession 

(p.  199). 

(e)  The  bailor  must  warn  the  baUee  of  any  defects  in  the 

thing  hired  which  render  it  unsuitable  and  danger- 
ous for  the  bailment  p\irpose  (p.  199). 

(f)  The  bailee  alone  is  liable  for  injuries  to  third  persons 

caused  by  his  negligent  use  of  the  property  (p.  200). 

(g)  Ordinary  and  incidental  expenses   of  caring  for  the 

property  must  be  borne  by  the  bailee;  extraordi- 
nary, by  the  bailor  (p.  200). 

(h)  The  bailee  must  exercise  ordinary  care  and  diligence 
in  the  use  of  the  thing  hired  (p.  201). 

(i)  The  bailee  is  liable  for  the  injurious  acts  of  those 
w^hom  he  voluntarily  permits  to  use  the  thing  hired 
(p.  204). 

(j)  The  bailee  must  deliver  up  the  thing  hired  at  the  ter- 
mination of  the  bailment  (p.  209). 

(k)  The  bailee  must  make  compensation  in  accordance 
■with  the  agreement  (p.  210). 

As  in  all  other  classes  of  bailmeirts,  the  parties  may  determine 
for  themselves  the  extent  of  their  mutual  rights  and  liabilities. 
Any  special  contract,  not  against  public  policy  or  in  ^^olation  of  law, 
will  be  enforced.^"  The  bailor  may  limit  the  time,  manner,  and 
place  in  which  the  thing  hired  may  be  used,^'  and  the  bailee  may 
undertake  to  insure  the  safe  return  of  the  goods.  But,  as  befort^ 
stated,  the  liabilities  of  a  bailee  will  not  be  enlarged,  or  his  rights 
limited,  by  words  of  doubtful  import  The  special  agreement  must 
be  clearly  proved.'^ 

35  Ante,  p.  10.  30  Post,  p.  1S(].  37  Ante,  p.  28. 


186  BAILMENTS    FOB    MUTUAL    BENEFIT — HIRINQ.  [Ch.  6 

Right  to  Use. 

The  hirer  also  acquires  the  right,  and  the  exclusive  right,  to  the 
use  of  the  thing  during  the  time  of  the  bailment,  and  the  owner 
has  no  right  to  disturb  him  in  the  lawful  enjoyment  of  it  during  this 
time.'*  Nor  can  a  creditor  of  the  bailor,  during  the  term  of  hire, 
attach  the  property,  and  take  it  from  the  custody  of  the  bailee.^* 
And  if,  during  that  time,  the  thing  is  redelirered  to  the  owner  for 
a  temporary  purpose  only,  he  is  bound  to  deliver  it  back  aiterwajtis 
to  the  hirer.*" 

Same — Liability  for  Misuser. 

There  is,  on  the  part  of  the  hirer,  an  implied  obligation  not  only 
to  use  the  thing  with  due  care  and  moderation,  but  also  not  to  apply 
it  to  any  other  use  than  that  for  which  it  is  hired.* ^  Thus,  if  a 
horse  is  hired  as  a  saddle  horse,  the  hirer  has  no  right  to  use  the 
horse  in  a  cart,  or  to  carry  loads,  or  as  a  beast  of  burden.**  So,  if  a 
carriage  and  horses  are  hired  for  a  journey  to  Boston,  the  hirer 
has  no  right  to  go  with  them  on  a  journey  to  New  York.**  So,  if 
horses  are  hired  for  a  week,  the  hirer  has  no  right  to  use  them  for 
a  month.**  So,  in  the  absence  of  any  agreement  as  to  the  number 
'f  persons  who  are  to  ride  in  a  hired  carriage,  the  hirer  is  an- 
sa story,  Bailm.  §  395;   Hickok  v.  Buck,  22  Vt.  149. 

3  9  Hartford  v.  Jackson,  11  N.  H.  145.  Lessee  has  a  right  to  property  leased 
during  lease,  paramount  to  any  right  of  lessor  or  his  creditors;  and,  in  en- 
joyment of  this  right,  they  cannot  disturb  him  with  impunity.  They  cannot 
take  the  property  out  of  his  possession.     Smith  v.  Niles,  20  Vt  315. 

*»  Roberts  v.  Wyatt,  2  Taunt.  268. 

*i  Story,  Bailm.  §  413.  Compare  "Gratuitous  Loans."  ante,  p.  89.  And 
see  CuUen  v.  Lord,  39  Iowa,  302;  Kennedy  v.  Ashcraft,  4  Bush  (Ky.)  530; 
Stewart  v.  Davis,  31  Ark.  318;   Martin  v.  Oathbertson,  64  N.  C.  328. 

If  hiring  be  general,  any  prudent  use  of  the  thing  is  permissible.  Home 
V.  Meakin,  115  Mass.  326;  McLauchlin  v.  Lomas,  3  Strobh.  (S.  a)  85;  Har- 
rington V.  Snyder,  3  Barb.  (N.  Y.)  380. 

*2  Jones,  Bailm.  08,  88.  See  Wilbraham  v.  Snow,  2  Saund,  47a,  47g,  and 
note;  Lockwood  v.  Bull,  1  Cow.  (N.  Y.)  322;  McNeill  v.  Brooks,  1  Yerg. 
(Tenn.)  73. 

4  3  Jones,  Bailm.  68.  And  see  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  915; 
Rotch  V.  Hawes,  12  Pick.  (Mass.)  136;  Homer  v.  Thwing,  3  Pick.  (Mass.) 
492;   Wheelock  v.  Wheelwright,  5  Mass.  104. 

4*  Jones,  Bailm.  68;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  915.  And  see 
Wheelock  v.  Wheelwright,  5  Mass.  104;   Stewart  v.  Davis,  31  Ark.  518. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIES LOCATK)    RET.  187 

thorized  to  carry  such  number  only  as  the  vehicle  was  made  for; 
not  exceeding,  of  course,  the  ordinary  load  adapted  to  the  team 
drawing  the  same.*'  And  it  may  be  generally  stated  that  if  the 
thing  is  used  for  a  different  purpose  from  that  which  was  intended 
by  the  parties,  or  in  a  different  manner,  or  for  a  longer  period,  the 
hirer  is  not  only  responsible  for  all  damages,  but,  if  a  loss  after- 
wards occurs,  although  by  inevitable  casualty,  he  will  generally  be 
responsible  therefor.*'  In  short,  such  misuser  is  deemed  at  the 
common  law  a  conversion  of  the  property,  for  which  the  hirer  is 
generally  held  responsible  to  the  letter,  to  the  full  extent  of  hip 
loss.*''  So,  if  a  bailee  for  hire  of  a  thing  for  a  limited  period  should 
sell  the  thing,  the  bailment  would  be  ended,  and  a  suit  might  he 
maintained  against  him  by  the  bailor  for  a  tortious  convereioii 
thereof.*^ 

The  general  rule  and  weight  of  authority  are  unquestionably  a.s 
above  stated.  The  early  cases  were  especially  stringent  in  the  lia- 
bility they  imposed  upon  a  bailee  who  violated  or  exceeded  the  terms 

*6  Harrington  v.  Snyder,  3  Barb.  (N.  Y.)  380. 

46  De  Tollenere  v.  Fuller,  1  Mill,  Coust.  (S.  C.)  117.  121;  Jones,  Bailni.  («.  09. 
121;  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  917;  Buchanan  v.  Smith,  10  Hun 
(N.  Y.)  474;  Fisher  v.  Kyle,  27  Mich.  454;  Lane  v.  Cameron.  38  Wis.  603; 
Ray  V.  Tubbs,  50  Vt.  688.  Where  a  horse  meets  with  an  injury  through  his 
own  fault,  but  while  the  bailee  is  misusing  it,  the  bailee  is  liable.  Lucas  v. 
Trumbull,  15  Gray  (Mass.)  306.  An  infant  is  not  liable  on  a  contract  of  hin-. 
but,  if  he  uses  the  property  in  any  other  than  the  stipulated  way,  he  is  liabli- 
for  conversion.  Jennings  v.  Kundall,  8  Term.  R.  335;  Homer  v.  Thwing.  3 
Pick.  (Mass.)  492.     Cf.  Whelden  v.  Chappel,  8  R.  I.  230. 

*T  Bac.  Abr.  "Bailment,"  C;    Id.  "Trover,"  C,  D,  E;    Wilbraham  v.  Snow. 

2  Saund.  47a,  47f,  47g,  note  by  Williams  &  Patteson;  IsaaeU  v.  Clark,  2 
Bulst.  306,  309;  Wilkinson  v.  King,  2  Camp.  335;  Loeschman  v.  Machin,  2 
Starkie,  311;  Youl  v.  Harbottle,  Peake,  49;  Rotch  v.  Hawes,  12  Pick.  (.Mass.) 
136;  Homer  v.  Thwing,  3  Pick.  (Mass.)  492;  Whcelock  v.  Wheelwright,  5 
Mass.  104;    Cooper  v.  Willomatt,  1  Man.,  G.  &  S.  672;    Harrington  v.  Snyder, 

3  Barb.  (N.  Y.)  380;  Crocker  v.  Gullifsr,  44  Me.  491;  Cobb  v.  Wallace.  5 
Cold.  539;   Wentworth  v.  McDufDe,  48  N.  H.  402. 

*8  Sargent  v.  Gile,  8  N.  H.  325;  Lovejoy  v.  Jones,  30  N.  H.  164;  Swift  v. 
Moseley,  10  Vt.  208;  Sanborn  v.  Colman,  6  N.  H.  14;  Johnson  v.  Willey,  46 
N.  H.  75;  Rodgers  v.  Grothe,  58  Pa.  St.  414;  Cooper  v.  Willomatt,  1  C.  B. 
672;  Marner  v.  Bankes  (G.  P.)  16  Wkly.  Rep.  62.  But  a  bailee  may  have  on 
assignable  interest.     See,  post,  p.  197. 


188  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.    5 

of  the  bailment  By  these  decisions  the  slightest  intentional  vio- 
lation of  the  terms  of  the  contract  was  regarded  as  a  conversion, 
and  the  bailee  was  held  liable  for  any  loss  thereafter  happening, 
though  caused  by  inevitable  accident,  and  though  it  would  have 
happened  even  had  there  been  no  violation  of  the  terms  of  the  bail- 
ment. The  tendency  of  the  more  modern  decisions,  however,  is 
towards  a  less  strict  liability.  Of  course,  there  is  no  difficulty  in 
cases  where  it  can  be  shown  that  the  bailee's  misconduct  caused 
the  loss.  In  such  cases  his  liability  is  cleax.  But  where  the  loss 
was  caused  by  inevitable  accident,  or  would  have  occurred  even  if 
he  had  not  been  guilty  of  any  misconduct,  the  question  is  not  free 
from  difiSculty,  and  the  authorities  are  not  in  accord.  The  ques- 
tion turns  upon  what  acts  will  amount  to  a  conversion.  It  is  only 
when  the  bailee  has  converted  the  property  that  absolute  liability, 
regardless  of  fault,  attaches.  Conversion  is  based  uDon_j^g_  idea 
ofan  flssnTnptioTi  bv  the  defendant  of  a  right  of  property,  or  a  right 
of  dominion  over  the  thing  converted,  which  casts  upon  him  all  the 
risks  of  an  owner.*'  By  the  act  of  conversion  the  real  owner  im- 
mediately acquires  a  right  of  action  against  the  wrongdoer  for  the 
value  of  the  thing  converted.^**  Satisfaction  by  the  defendant  of 
the  judgment  obtained  for  such  value  vests  the  title  to  the  property 
in  him  by  relation,  as  of  the  time  of  conversion."^ 

"The  distinction  between  acts  of  trespass,  acts  of  misfeasance, 
and  acts  of  conversion  is  often  a  substantial  one.  In  actions  in 
the  nature  of  trespass  or  case  for  misfeasance,  the  plaintiff  recov- 
ers only  the  damages  which  he  has  suffered  by  reason  of  the  wrong- 
ful acts  of  the  defendant;  but,  in  actions  in  the  nature  of  trover, 
the  general  rule  of  damages  is  the  value  of  the  property  at  the 
time  of  the  conversion,  diminished,  when  the  property  has  been  re- 
turned to  and  received  by  the  owner,  by  the  value  of  the  property 
at  the  time  it  was  returned,  so  that  after  the  conversion,  and  until 
the  delivery  to  the  owner,  the  property  is  absolutely  at  the  risk  of 
the  person  who  has  converted  it;  and  he  is  liable  to  pay  for  any 
depreciation  in  value,  whether  that  depreciation  has  been  occa- 

*9  Spooner  v.  Manchester,  133  Mass.  270. 

5  0  Suth.  Dam.  §  7;    Sedg.  Dam.  §  5. 

61  Spooner  v.  Manciiester,  133  Mass.  270,  273. 


§    41]  BIGHTS    AND    LIABILITIES    OF    PARTIES LOCATIO    RKI.  189 

sioned  by  his  negligence  or  fault,  or  by  the  negligence  or  fanlt  of 
any  other  pprsnn,  or  by  inevitAhlp  n,^fident  or  the  act  of  God"  " 

This  right  of  an  owner  to  recover  as  damages  the  valne  of  the 
property  converted  is  itself  regarded  as  in  the  nature  of  property.** 
It  vests  in  him  the  instant  the  wrong  is  committed.  The  subsequent 
verdict  and  judgment  merely  define  its  extent'*  It  is  protected 
by  the  ordinary  constitutional  guaranties,  and  he  cannot  be  deprived 
of  it  without  his  consent"^' 

Same — What  Constitutes  Conversion. 

It  is  not  every  wrongful  detention  of  personal  property  that 
amounts  to  a  conversion.**  Acts  which  themselves  imply  an  aa 
sertion  of  title  or  of  a  rip-ht  of  flomininn  nvAr  ppyflpnal  property. 
such  as  a  sale,  letting,  or  destruction  of  it,  amount  to  a  conversion, 
even  although  the  defendant  mav  have  honestlv  piistakpyi  his  Hyhtp: 
but  acts  which  do  not  in  themselves  imply  an  assertion  of  title,  or 
of  a  right  of  dominion  over  such  property,  will  not  sustain  an  ac- 
tion of  trover,  unless  done  with  the  intention  to  deprive  the  owner 
of  it  permanently  or  temporarily,  or  unless  there  has  been  a  demand 
for  the  property,  and  a  neglect  or  refusal  to  deliver  it,  which  ai^e 
evidence  of  a  conversion,  because  they  are  evidence  that  tho  de 
fendant,  in  withholding  it,  claims  the  right  to  withhold  it,  which  is  a 
claim  of  a  right  of  dominion  over  it'^     Thus,  ia  an  action  for  conver- 

62  Spooner  v.  Manchester,  133  Mass.  270.  See,  also.  Perham  v.  Coney.  117 
Mass,  102.  Where  horses  were  loaned  to  be  used  in  O.,  and  the  bailee  sent 
them  to  v.,  where  they  became  sick  and  died,  it  was  held  that  the  right  to 
use  the  thing  bailed  is  strictly  confined  to  the  use  expressed  in  the  transac- 
tion, and  the  borrower,  by  any  excess,  makes  himself  responsible  for  the 
loss,  although  it  be  by  some  inevitable  casualty.  Lane  v.  Cameron,  38  Wis. 
603. 

63  2  Bl.  Comm.  438. 

B*  Suth.  Dam.  §  7;   Sedg.  Dam.  §  5. 

66  Suth.  Dam.  §  7;  Cooley,  Const.  Lim.  449;  Westervelt  v.  Gregg,  12  N.  Y. 
211;  Dash  v.  Van  Kleeck,  7  Johns.  (N.  Y.)  477;  Streubel  v.  MUwaukee  &  M. 
R.  Co.,  12  Wis.  67;  Thornton  v.  Turner,  11  Minn.  336  (GIL  237). 

66  "A  conversion  consists  in  an  illegal  control  of  \\\^  thing  converted,  in- 
consistent with  the  plaintiff's  right  of  property.".  Perley,  J.,  In  Woodman  t. 
Hubbard,  25  N.  H.  67,  71.  See,  also,  Spooner  v.  Holmes,  102  Mass.  503,  col- 
lecting cases. 

67  Spooner  v.  Manchester,  133  Mass.  270;  WUson  v.  McLaughlin,  107  Mass. 
587;   Simmons  v.  Lillystone,  8  Exch.  43L     In  Fouldes  v.  WiUoughby,  8  Mees. 


190  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

sion  of  a  horse,  it  appeared  that  defendant  had  hired  the  horse  for  a 
journey,  and  had  carried,  in  addition  to  hia  own  weight,  $2,000  in  spe- 
cie, weighing  160  pounds.  The  court  said:  'If,  however,  an  excessive 
weight  be  put  on  the  horse,  it  will  not  amount  to  a  conversion,  but  will 
be  an  abuse  of  the  animal,  for  which,  if  injured  by  it,  the  owner  may 
recover  damages  in  an  action  on  the  case.  By  the  contract  of  hiring, 
the  hirer  is  bound  to  use  the  horse  in  a  moderate  and  prudent  manner. 
If  the  hiring  be  to  ride,  he  must  not  ride  immoderately;  if  to  work,  he 
must  not  work  the  animal  unreasonably, — or,  in  either  case,  he  will 
be  liable,  in  action  on  the  case,  for  the  damages  resulting  from 
his  misconduct,  but  not  for  a  conversion,  because  the  immoderate 
use  of  the  animal  during  the  time  and  in  the  mode  stipulated  by  the 
contract  does  not  amount  to  the  assertion  of  ownership  and  of  a 
right  distinct  and  different  from  that  acquired  by  the  contract  It 
may  have  resulted  from  ignorance  or  carelessness,  without  any  de- 
sign whatever  to  exceed  the  authority  given  by  the  owner.  But 
when  a  hirer  appropriates  the  horse  to  a  use  entirely  different  from 
the  one  for  which  he  was  hired,  as  if  he  ride  him  to  a  different  place, 
or,  if  hired  to  ride,  put  him  in  a  wagon,  he  thereby  assumes  an  au- 
thority entirely  distinct  from  and  independent  of  that  conferred  by 
the  contract,  and  usurps  the  character  of  owner.  He  does  not  an 
act  which  he  had  authority  to  do,  in  an  unreasonable  and  injurious 
manner,  but  an  act  wholly  unauthorized  by  the  license  of  the  owner, 
and  is  therefore  guilty  of  a  conversion."  " 

&  W.  540,  547  (a  leading  case),  it  is  said,  "In  order  to  constitute  a  conversion, 
it  is  necessary  either  that  the  party  taking  the  goods  should  intend  some  use 
to  be  made  of  them  by  himself,  or  by  those  for  whom  he  acts,  or  that,  owing 
to  his  act,  the  goods  are  destroyed  or  consumed,  to  the  prejudice  of  the  law- 
ful owner." 

6  8  McNeill  V.  Brooks,  1  Yerg.  (Tenn.)  73.  In  Swift  v.  Moseley,  10  Vt  208, 
210,  Redfield,  J.,  said,  "If  the  thing  be  put  to  a  different  use  from  that  for 
which  it  was  bailed,  the  bailor  may  maintain  trespass  or  trover,"  but  that 
"any  misuser  or  abuse  of  the  thing  bailed,  in  the  particular  use  for  which  the 
bailment  was  made,  wiU  not  enable  the  general  owner  to  maintain  trespass 
or  trover  against  the  bailee."  The  proposition  is  perhaps  stated  too  broadly. 
In  Wentworth  v.  McDuffie,  48  N.  H.  402,  it  was  held  that  the  bailor  of  a 
mare  may  maintain  trover  against  the  bailee,  if  the  bailee  wUlfuUy  and  in- 
tentionally drove  the  mare  at  such  an  immoderate  and  violent  rate  of  speed 
as  seriously  to  endanger  her  life;   he  being  aware  of  the  danger  at  the  time, 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIES LOCATIO    UKI.  191 

It  was  early  he]f|  thaf  a  mprp  Hivpramn  frnm  t^p  l^ne  of  tr^Y<,tl  or 
going  bejondLilliLJHUiiLIor,wbich  a  hoi-se  was  hired  amountfHJ  to  a 
conversion,  and  rendered  the  bailee  absolutulv  liable  fur  the  value 
of  the  horse."  On  this  principle,  bailees  are  held  liable,  thQQ|rh 
the  contract  of  hirinp^  was  void  heeflnae  maHo  ,,ri  Sunday/"  or  void 
able  becanse  the  bailee  was  an  infant'^  In  <u.  h  (  ^  i'  is  not 
necessary  to  rely  on  the  contract  to  ystj^blish  i:m^  ,>m.  ^  since, 

as  soon  as  the  hirer  assumes  control  over  tli  •  ln.i;^,  aii'l  pnic,  ,  .I-*  i.. 
take  it  where  he  has  no  right  f^<f  talfP  if,  he^is  guiky  of  conversion, 
and  it  is  immaterial  how  he  obtained  liis  jx.  -i  ssion  otif^inall^v.''- 
Where  one  unintentionally  deviates  fro lu  ihc  liiu  oi  navrl,  as  when- 

and  the  death  of  the  mare  being  caused  thereby.  "The  act  of  the  bailee  in 
willfully  and  intentionally  driving  the  horse  at  such  an  immoderate  rate  of 
speed  as  he  knew  would  seriously  endanger  the  life  of  the  horse  is  at  least 
as  marked  an  assumption  of  ownership,  and  as  substantial  an  invasion  of  the 
bailor's  right  of  property,  as  the  act  of  driving  the  horse  at  a  moderate  speed 
one  mile  beyond  the  place  named  in  the  contract  of  hiring."     Id. 

B»  Ck)ggs  V.  Bernard,  2  Ld.  Kaym.  909,  915  (dictum  of  Lord  Holt).  And  see 
Disbrow  V.  Tenbroeck,  4  E.  D.  Smith  (N.  Y.)  397;  Wheelock  v.  Wheelwright, 
o  Mass.  104;  Rotch  v.  Hawes,  12  Pick.  (Mass.)  13G;  Woodman  v.  Hubbard, 
25  N.  H-  67;  Morton  v.  Gloster,  46  Me.  491;  Crocker  v.  Gullifer,  44  Me.  520; 
Fish  V.  Ferris,  5  Duer  (N.  Y.)  49;  McNeill  v.  Brooks,  1  Yerg.  (Teun.)  73; 
Wentworth  v.  McDuffie,  48  N.  H.  402;  Lucas  v.  Trumbull,  15  Gray  (Mass.) 
306;  Harrington  v.  Snyder,  3  Barb.  (N.  Y.)  380;  Buchanan  v.  Smith.  10  Uuu 
(N.  Y.)  474;  Perham  v.  Coney,  117  Mass.  102;  Lane  v.  Cameron,  38  Wis. 
G03;  Malone  v.  Robinson,  77  Ga.  719;  Murphy  v.  Kaufman,  20  La.  Ann.  559; 
Fisher  v,  Kyle,  27  Mich.  454;  Welch  v.  Mohr,  93  Cal.  371,  28  Pac.  1060.  lu 
Cullen  V.  Lord,  39  Iowa,  302,  it  was  held  that  a  disregard  of  instructions  as 
to  the  manner  of  iise  of  the  thing  hired  will  render  the  bailee  liable  only 
when  the  loss  was  occasioned  thereby.  In  the  case  of  a  commodatum,  it 
renders  the  bailee  liable  absolutely. 

60  Hall  V.  Corcoran,  107  Mass.  251,  overruling  Gregg  t.  Wyman,  4  Cush. 
(Mass.)  322.  See,  also.  Frost  v.  Plumb,  40  Conn.  111.  In  Whelden  t.  Chap- 
pel,  8  R.  I.  230,  the  court,  without  discussing  the  general  question,  held  that 
the  action  must  fail  because  the  contract  was  made  on  Sunday. 

•1  An  infant  is  liable  in  trover  for  driving  a  horse  beyond  where  he  was 
hired  to  go.  Homer  v.  Thwing,  3  Pick-  492;  Freeman  v.  Boland,  14  II.  I.  39. 
Where  an  infant  deviated  from  the  terms  of  his  hiring,  and,  by  reason  of  his 
overdriving  and  exposure  of  the  horse,  it  died,  it  was  held  that  the  deviation 
was  a  conversion,  and  rendered  him  liable  in  trover.  Towne  v.  Wiley,  23 
VL  355.     See,  also,  Ray  v.  Tubbs,  50  Vt  688. 

6  2  Hall  V.  Corcoran,  107  Mass.  251. 


192  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

the  hirer  of  a  horse  loses  his  way,  he  is  not  liable  for  conrersion. 
To  constitute  conversion  there  must  be  an  intention  to  exercise 
dominion  over  the  property.®^  Merely  stopping  along  the  road  is 
not  sufficient  to  constitute  conversion.** 

The  strict  rule  that  the  slightest  intentional  deviation  from  the 
terms  of  the  bailment  contract  will  constitute  a  conversion,  and  ren- 
der the  bailee  absolutely  liable  for  any  loss  or  injury  thereafter  hap- 
pening, has  not  gone  unquestioned.  Both  Mr.  Story "  and  Mr. 
Schouler  ^®  doubt  its  application  where  the  loss  was  not  caused  by 
the  deviation,  or  would  have  occurred  even  had  there  been  no  devia- 
tion, but  their  doubt  is  not  founded  on  principle.  Mr.  Schouler  has 
nothing  better  to  suggest  than  that  the  contract  be  liberally  con- 
strued in  favor  of  the  bailee.^^ 

In  Farkas  v,  Powell,®*  a  horse  was  taken  beyond  the  point  to 
which  he  was  hired  to  go.  After  returning  within  the  limits  cov- 
ered by  the  hiring,  the  horse  stumbled  and  fell,  and  afterwards  died. 
It  was  held  that  taking  the  horse  beyond  the  point  to  which  he  was 
hired  to  go  constituted,  at  least,  a  technical  conversion,  and,  if  the 
horse  had  been  injured  while  beyond  that  point,  the  hirer  would 
liave  been  liable,  whether  the  injury  was  caused  by  his  own  negli- 
gence, or  that  of  others,  or  by  accident  But,  as  the  injury  occurred 
after  he  had  returned  within  the  limits,  the  court  held  that  the  hirer 
would  not  be  liable  unless  the  injury  was  caused  by  his  negligence, 
or  unless  the  extra  drive  materially  contributed  to  the  injury,  and 
the  case  was  remanded  to  have  these  questions  determined  by  a  jury. 
The  court  said :  "But  the  nice  question  in  this  case  is,  would  Pow- 
ell, after  having  been  guilty  of  a  technical  couTcrsion,  or  violation 
of  his  duty,  and  having  returned  within  the  limits  of  the  original 
hiring,  and  the  horse  then  sustained  injury  without  other  fault  on 

8  3  Spooner  v.  Manchester,  133  Mass.  270.  An  intentional  deviation  from 
the  line  of  travel  is  an  act  of  dominion  exercised  over  the  horse,  inconsistent 
with  the  right  of  the  owner.  Id.  p.  273.  See,  also,  W^ington  v.  Weat- 
worth,  8  Mete.  (Mass.)  548;  Nelson  v.  Whetmore,  1  Eich.  (S.  C.)  3ia 

«*  Evans  v.  Mason,  64  N.  H.  98,  5  AtL  766. 

•  5  Story,  Bailm.  §§  409,  413-413d. 

e6  Schouler,  Bailm.   (2d  Ed.)  §  14a 

•7  Schouler.  Bailm.  (2d  Ed.)  §  141, 

•8  86  Ga.  800,  13  S.  E.  200. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIES LOCATIO    REI.  193 

his  part,  be  liable?  That  would  depend,  in  our  opinion,  upon 
whether  the  extra  ride  of  six  or  eight  miles  to  the  Bryant  place  and 
back  caused,  or  materially  contributed  to,  the  accident.  If  it  did. 
we  think  he  would  be  liable  to  the  owner.  The  horse  mi};ht  liuv*- 
been  well  able  to  travel  the  five  miles  and  return,  but  the  six  or 
eight  miles  extra  may  have  fatigued  him  to  such  an  extent  as  to 
have  caused  him  to  stumble  and  fall,  and  thus  produce  the  injury. 
If,  however,  the  extra  ride  did  not  cause  or  materially  contribute  to 
the  injury,  we  do  not  think  Powell  would  be  liable,  if  guilty  of  no 
other  fault.  We  can  see  no  good  reason  to  hold  the  hirer  li.-iblc  for 
an  injury  to  the  horse  which  occurred  without  his  fault,  after  he  had 
returned  with  it  within  the  limits  of  his  original  contract,  although 
he  had  been  guilty  of  a  technical  conversion  by  riding  it  three  mih's 
beyond  the  point  to  which  it  was  hired  to  go,  the  extra  distance  not 
causing  or  contributing  to  the  injury.  We  have  been  unable  to  find 
any  case,  the  facts  of  which  are  like  the  facts  in  this.  Nearly  all 
the  cases  which  hold  the  hirer  liable  when  he  has  deviated  from  thf 
terms  of  his  contract  are  cases  in  which  he  was  negligent  in  fact,  or 
willfully  and  wantonly  misconducted  himself,  or  had  overdriven  the 
horse,  or  destroyed  or  ruined  the  property  while  beyond  the  limit 
or  in  the  course  of  deviation  from  the  purpose  of  hiring.® °  ♦  •  • 
The  facts  in  those  cases  show  that  the  property  was  injured  or  de 
stroyed  during  the  time  it  was  being  improperly  used,  or  being  used 
for  a  different  purpose  from  that  for  which  it  was  hired.  The  ques- 
tion whether  this  extra  ride  did  or  did  not  cause  or  materially  eon- 
tribute  to  the  injury  was  for  the  jury  to  determine  under  the  evi- 
dence and  a  proper  charge  by  the  court." 

The  distinction  taken  in  this  case  cannot  be  sustained  on  principle. 
At  the  very  moment  of  conversion,  the  right  to  recover  the  entire 
value  of  the  horse  at  that  time  ves^^f^  iti  fjip  nwnnrJ'^  This  ri^ht 
to  recovel*  damages  is  a  property  ri<Tbt,  wliirh  cnnnnt  be  diiniuished 
or  taken  away  except  by  ^>^p  nwn.'f'H  rnnspnt.^^       Certainly,  tin- 


«9  Citing  as  examples  Mayor  and  Council  of  Columbus  v.  iiouani.  8  Ga. 
213;  Gorman  v.  Campbell,  14  Ga.  137;  Collins  v.  Hutcbius,  21  Ga.  270;  Lewis 
V.  McAfee,  32  Ga.  4G5;    Malone  v.  Robinson,  77  Ga.  719. 

70  Ante,  p.  189;  4  Am.  &.  Eng.  Enc.  Law,  p.  121,  tit.  "Conversion." 

71  Ante,  p.  189.  Tbe  owner  cannot  be  compelled  to  accept  the  property  ia 
mitigation  of  damages.    Green  v.  Speery,   10  Vt.  3'JO;    llart   v.   Skiuuer,   IG 

LAW  BAILM.— 13 


194  BAILMENTS    FOB    MUTUAL    BENEFIT HIBING.  [Ch.   5 

wrongdoer  cannot  by  his  art  alnnp^  ns  byrjaturning  within  the  bail- 
ment limits,  impair  this  right.  Of  course,  if,  after  the  conversion, 
the  owner  voluntarily  accepts  the  horse,  that  fact  may  be  shown,  to 
reduce  the  damages.'^ ^  In  such  case  the  measure  of  damages  would 
be  the  difference  between  the  value  at  the  time  of  conversion,  and 
the  value  at  the  time  of  return  and  acceptance  by  the  owner.''' 
This  would  leave  the  wrongdoer  absolutely  liable  for  any  deteriora- 
tion or  injury  in  the  meanwhile.''*  The  mere  return  of  the  bailee 
within  the  bailment  limits,  without  any  action  on  the  part  of  the 
bailor,  of  course,  does  not  affect  the  latter's  rights.''' 

The  only  escape  from  absolute  liability  in  this  class  of  cases  is 
to  hold  that  a  mere  unauthorized  use  of  the  hired  property  does  not 
constitute  a  conversion.  This  the  supreme  court  of  Iowa  has  done 
in  a  recent  case.^^  The  court  said:  "To  constitute  a  conversion  in 
a  case  like  that  at  bar,  there  must  be  some  exercise  of  dominion  over 
the  thing  hired,  in  repudiation  of,  or  inconsistent  with,  the  owner's 
rights.  We  hold  that  the  mere  act  of  deviating  from  the  line  of 
travel  which  the  hiring  covered,  or  going  on  beyond  the  point  for 
which  the  horse  was  hired,  are  acts  which,  in  and  of  themselves, 

Vt.  13S;  Shot  well  v.  Wendover,  1  Johns.  (N.  Y.)  65.  But  where  the  conver- 
sion is  merely  technical,  and  the  property  is  in  the  same  condition,  it  has 
been  held  that  the  plaintiff  may  be  compelled  to  accept  its  return  in  mitiga- 
tion of  damages.  Hart  v.  Skinner,  16  Vt.  13S;  Churchill  v.  Welsh,  47  Wis. 
39,  1  N.  W.  398;  Cook  v.  Loomis,  26  Conn.  483;  Stevens  v.  Low,  2  Hill  (N. 
Y.)   132. 

T2  Wheelock  v.  Wheelwright,  5  Mass.  104,  106;  Sparks  v.  Purdy,  11  Mo. 
142;  Yale  v.  Saunders,  16  Vt.  243;  Brady  v.  Whitney,  24  Mich.  154;  Cook  v. 
Loomis,  26  Conn.  483.  Acceptance  of  the  property  may  or  may  not  show  a 
waiver  of  the  tort,  according  to  circumstances.  Certainly,  an  acceptance 
without  knowledge  of  the  tort  would  not  be  a  waiver.  See  Lucas  v.  Trum- 
bull, 15  Gray  (Mass.)  306;  Austin  v.  Miller,  74  N.  C.  274;  Reynolds  v,  Shuler, 
5  Cow.  323. 

T3  Lucas  V.  Trumbull,  15  Gray  (Mass.)  306;  Irish  v.  Cloyes,  SVt.  30;  Ewing 
V.  Blount,  20  Ala.  694. 

1*  2  Sedg.  Dam.  §  494;  Renfro's  Adm'x  v.  Hughes,  69  Ala.  581;  Davenport 
V.  Ledger,  80  111.  574;  Carter  v.  Roland,  53  Tex.  540;  Kinnear  v.  Robinson, 
2  Han.  (N.  B.)  73;   Jamison  v.  Hendricks,  2  Blackf.  (Ind.)  94. 

76  See  Wanamaker  v.  Bowes,  36  Md.  42;  Northrup  v.  McGill,  27  Mich.  234; 
Bringard  v.  Stellwagen,  41  Mich.  54,  1  N.  W.  909. 

Ti  Doolittle  V.  Shaw  (Iowa)  60  N.  W.  621. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIK8 LOCATIO    RKI.  195 

do  not  necessarily  imply  an  assertion  of  title  or  right  of  dominion 
over  the  property  inconsistent  with,  or  in  defiance  of,  the  bailor's  in- 
terest therein."  This  rule  seems  to  do  substantial  justice,  though 
it  is  opposed  to  the  weight  of  authority.  It  is  diflicult  to  under 
stand,  however,  why  a  use  of  the  property  in  direct  and  intentional 
violation  of  the  agreement  with  the  owner  is  not  an  assertion  of  do- 
minion inconsistent  with,  and  in  defiance  of,  the  latter's  title." 

In  Harvey  v.  Epes^*  the  contract  was  one  for  the  hire  of  slaves 
for  a  year,  to  work  in  a  certain  county.  They  were  taken  by  the 
hirer,  without  the  owner's  consent,  to  another  county,  and  employed 
in  the  same  kind  of  work,  and  while  there  died.  The  court,  after 
elaborately  discussing  the  question,  and  fully  considering  the  au- 
thorities, held  that  the  removal  of  the  slaves  to  a  county  other  than 
that  to  which  they  were  hired  to  work  in  was  not  of  itself  a  conver- 
sion, regardless  of  whether  their  death  was  caused  by  such  wrong- 
ful act  or  not.  It  said :  "Upon  the  whole,  I  am  of  the  opinion  that, 
in  the  case  of  a  bailment  for  hire  for  a  certain  term,  ♦  •  •  the 
use  of  the  property  by  the  hirer,  during  the  term,  for  a  different  pur- 
pose or  in  a  different  manner  from  that  which  was  intended  by  the 
parties,  will  not  amount  to  a  conversion  for  which  trover  will  lie, 
unless  the  destruction  of  the  property  be  thereby  occasioned,  or  at 
least  unless  the  act  be  done  with  intent  to  convert  the  property. 
and  thus  to  destroy  or  defeat  the  interest  of  the  bailor  therein. 
*  *  *  A  bailment  upon  hire  is  not  conditional  in  its  nature,  any 
more  than  any  other  contract,  and,  in  the  absence  of  an  express  pro- 
vision to  that  effect,  the  bailee  will  not,  in  general,  forfeit  his  estate 
by  a  violation  of  any  of  the  terms  of  the  bailment.  *  *  *  If  he 
merely  uses  the  property  in  a  manner  or  for  a  purpose  not  authorizA'd 
by  the  contract,  and  without  destroying  it,  or  without  intending  to 

TT  In  Wentwortb  v.  McDuffie,  48  N.  H.  402,  406,  it  Is  said  to  be  the  settli-.l 
rule  in  that  state  that  driving  a  horse  beyond  the  place  to  which  the  birlu;; 
was  limited  constituted  a  conversion;  and  the  doctrine  was  expressly  restt'd 
upon  the  idea,  not  that  driving  the  horse  beyond  the  place  named  is  conclu- 
sive evidence  of  the  bail(?e's  intention  to  convert  the  animal  to  bis  own 
use,  but  rather  that  such  use  of  the  property  is  so  substantial  an  Invasion  of 
the  owner's  rights,  and  so  inconsistent  with  the  idea  of  an  existing  bailment, 
that  the  bailee  cannot  reasonably  object  to  the  bailor's  treating  the  bailment 
as  terminated  thereby,  and  proceeding  against  him  for  conversion. 

7  8  12  Grat.  153. 


196  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

injure  or  impair  the  reversionary  interest  of  the  bailor  therein,  such 
misuser  does  not  determine  the  bailment,  and  therefore  is  not  a  con- 
version for  which  trover  will  lie."'" 

Same — Bailor^s  Right  to  Resume  Possession. 

But  the  question  may  be  asked  whether  the  hirer  acquires  such  a 
right  to  the  use  of  the  thing  during  the  time  of  the  bailment  that  the 
owner  is  bound  to  abstain  from  interfering  with  his  enjoyment  of 
it  during  that  time,  although  the  hirer  should  misuse  it,  or  abuse  or 
injure  it,  or  otherwise  violate  his  own  obligations.  As  to  this,  it 
seems  that  the  owner  cannot  justify  a  seizure  of  the  thing  by  force 
from  the  personal  possession  of  the  hirer,  whatever  may  be  his  right 
to  retake  it,  if  he  can  peaceably,  wherever  he  can  find  it,  under  other 
circumstances.  Thus,  for  example,  if  a  horse  is  let  to  hire  for  two 
days  for  a  stipulated  journey,  and  the  hirer,  during  that  period, 
should  wrongfully  use  the  horse  for  another  journey,  and  should  be 
found  on  such  improper  journey,  the  owner  cannot  justify  seizing 
the  horse,  and  dragging  the  hirer  off  from  the  horse,  while  he  is  rid- 
ing him.®° 

Special  Property — Right  oj  Action  against  Third  Persons. 

By  the  Roman  law  the  hirer  acquired  the  right  of  possession  only 
of  the  thing  for  the  particular  period  or  purpose  stipulated,  but  he 
acquired  no  property  in  the  thing.^^  By  the  common  law,  in  virtue 
of  the  bailment  the  hirer  acquires  a  special  property  in  the  thing 
during  the  continuance  of  the  contract,  and  for  the  purposes  ex- 
pressed or  implied  by  it.®^  Hence  he  may  maintain  an  action  for 
any  tortious  dispossession  of  it,  or  any  injury  to  it,  during  the  exist- 
ence of  his  right.*^     But  since,  in  such  case,  the  owner  has  also  a 

7  8  See,  also,  2  Pars.  Cont.  p.  128. 

80  Story,  Bailm.  §  396;  Scbouler,  Bailm.  (2d  Ed.)  §  139;  Trotter  v.  McCall, 
2b  Miss.  413.     See  Lee  v.  Atkinson,  Yel.  172. 

81  Story,  Bailm.  §  394. 

82  Jones,  Bailm.  85,  8G;  Bac.  Abr.  "Bailment,"  C;  Lee  v.  Atkinson,  Yel. 
l{2;  2  Bl.  Comm.  395,  39G;  2  Kent,  Comm,  (4tli  Ed.)  lect.  40,  p.  586;  Wil- 
braham  v.  Snow,  2  Saund.  47,  and  note  by  Williams;  Eaton  v.  Lynde,  15 
Mass.  242, 

88  Croft  V.  Alison,  4  Barn.  &  Aid.  590;  Bac.  Abr.  "Trespass."  C;  Id.  "Tro- 
ver," C;  Ludden  v.  Leavitt,  9  Mass.  104;  Warren  v.  Leland,  Id.  205;  Hall 
f,  Pickard,  3  Camp.  187;   Nicolls  v.  Bastard,  2  Cromp.,  M.  &  R.  659,  GGO;  Bliss 


g    41]  KlGUrs    AJSD    LIABILITIES    OK    PAKTIKS LOCATIO    itET  107 

general  property,  unless  he  has,  by  virtue  of  his  agreement,  partt*d 
with  it  for  a  definite  term,  he  also  may  maintain  a  like  suit  against 
the  stranger.**  But  in  such  a  case  a  recovery  by  oitlier,  it  seems,  will 
bai*,  or  at  least  may  bar,  the  action  of  the  other," 

Where  the  hiring  is  for  a  definite  term,  the  bailor  cannot  maintain 
trover  or  replevin  during  such  term.*"     The  hirer  is  the  proper  one 
to  bring  such  an  action.      The  bailor  may,  however,  maiutain  an 
action  for  injury  to  the  reversion.'^ 
When  Bailee  Has  Assignable  Interest. 

A  bailee  at  will  of  personal  property,  where  the  bailment  may 
be  terminated  at  the  pleasure  of  either  party,  and  a  bailee  in  whom 

V.  Schaub,  48  Barb.  (N.  Y.)  339;  Woodman  v.  Nottingham,  49  N.  II.  387: 
Rindge  v.  Inhabitants  of  Coleraine,  11  Gray  (Mass.)  158;  Hare  v.  Fuller,  7  Ala. 
717;  McGill  v.  Monette,  37  Ala.  49;  Hopper  v.  MiUer,  76  N.  C.  402;  White  v. 
Bascom,  28  Vt  2C8.  An  auctioneer,  who,  as  agent  of  the  owner,  selLs  and  de- 
livers goods  on  a  condition  which  is  not  complied  with,  may  maintain  re 
I^evln  therefor.     Tyler  v.  Freeman,  3  Gush.  (Mass.)  261. 

84  Bac.  Abr.  "Trespass,"  C;  Id.  "Trover,"  C;  2  BL  Comm.  396;  Gordon  v 
Harper,  7  Term  li.  9;  Pain  v.  Whittaker,  1  Ryan  &  M.  99;  Wilbrahara  t. 
Snow,  2  Saund.  47a,  notes  by  Williams,  etc.;  Nicolls  v.  Bastard,  2  Cromp. 
M.  &  R.  G59;    I^acoste  v.  Pipkin,  13  Smedes  &  M.  589. 

86  Story,  Bailm.  §  394;  Plewellin  v  Rave.  1  Bulst  68,  G9;  WUliam  v 
Gwyn,  2  Saund.  4G,  47,  and  note. 

««  Clarke  v.  Poozer,  2  McMull.  (S.  C.)  434;  Swift  v.  Moseley,  10  Vt  208. 
But  see  Hears  v.  London  &  S.  W.  Ry.  Co.,  11  C.  B.  (N.  S.)  850;  Eldridge  v. 
Adams,  54  Barb.  (N.  Y.)  417.  Unless  bailee  has  absolute  right  to  retain 
bailed  property  for  definite  time,  trespass  may  be  brought  against  wrong- 
doer to  property,  either  in  name  of  bailor  or  bailee.  Strong  v.  Adams,  30  Vt. 
221;  or  trover,  Drake  v.  Redington,  9  N.  H.  243.  See,  also,  Hurd  v.  West, 
7  Cow.  (N.  Y.)  752;  Halyard  v.  Dechelman,  29  Mo.  459;  Howard  v.  Farr,  18 
N.  H.  457;  Swift  v.  Moseley,  10  Vt.  208;  Clarke  v.  Poozer.  2  McMull.  (S.  C) 
434.  A  bailee  for  a  definite  term  may  maintain  trespass  against  his  bailor 
for  a  wrongful  retaking  of  the  property.  Burdict  v.  Murray,  3  Vt.  302. 
See  Angus  v.  McLachlan,  23  Ch.  Div.  330.  In  trover  by  a  bailee  against  his 
bailor,  the  measure  of  damages  is  the  value  of  the  bailee's  special  interest 
In  the  goods;  but  in  trover  against  a  stranger  the  bailee  recovers  the  entire 
value  of  the  goods,  and  must  hold  the  excess  over  his  special  Interest  In  trust 
for  the  bailor.    Benjamin  v.  Stremple,  13  111.  406. 

"  See  Scliouler,  Bailm.  (2d  Ed.)  §  154;  Howard  v.  Farr,  18  N.  H.  457; 
White  V.  Griffin,  4  Jones  (N.  C.)  139.  See,  also,  Lexington  &  O.  R.  Co.  t. 
Kidd,  7  Dana  (Ky.)  245;  Mears  v.  London  &  S.  W.  Ry.  Co.,  U  a  B.  ^N.  S.) 
850. 


198  BAILMENTS    FOR    MUTUAL    BENEFIT HIBINQ.  [Ch.   5 

a  personal  confidence  is  reposed,  hare  no  assignable  interest  in  the 
thing  bailed ;  and  any  sale  by  them  passes  no  property,  bnt  puts  Jin 
end  to  the  bailment,  and  the  bailor  may  bring  trover  or  trespass 
against  the  purchaser  who  takes  the  property.*®  But  a  hirer  of 
property  for  a  term,  or  a  bailee  who  has  a  lien  on  the  prox)erty,  may 
have  an  assignable  interest  in  it;  and,  though  his  sale  of  the  prop- 
erty absolutely  will  put  an  end  to  the  bailment,  yet  his  transfer  of 
his  interest  merely  (that  is,  of  the  property  subject  to  the  property 
rights  of  the  general  owner)  will  convey  his  interest,  and  the  pur- 
chaser will  hold  the  property  in  the  same  manner  as  the  seller  did-*' 
Pledges  or  pawns  are  illustrations.^"  A  lejttinjX_for  hire  may  be 
at  will,  or  it  maj  partake  of  the  character  of  a  license  or  personal 
confidence,  in  either^of  which  cases  the  hirer  will  have  no  assignable 
Interest."^  gut  it  may  also  be  a  letting  for  a  fixed  time,  and  with- 
out  restriction  or  limitation  from  which  any  personal  confidence 
may  be  inferr^.  It  may  be,  in  terms,  to  the  party  and  his  assigns, 
or  the  character  of  the  use  may  be  such  as  necessarily  to  Imply  that 
the  property  may  be  assigned.  In  every  such  case  the  hirer  may  b« 
deemed  to  have  an  assignable  interest." 

8  8  Bailey  v.  Colby,  34  N.  H.  29.  Hirer  of  personal  property  cannot,  by 
sale  thereof,  though  to  a  purchaser  in  good  faith,  pass  title.  Russell  v. 
Favier,  18  La.  585. 

8  9  Bailey  v.  Colby,  34  N.  H.  29. 

»o  A  factor  may  pledge  the  goods  to  the  extent  of  his  own  lien  thereon,  if 
he  avowedly  confines  his  pledge  to  that,  and  does  not  exceed  his  interest. 
Man  V.  Shiffner,  2  East,  523-529;  McCombie  v.  Davies,  7  East,  6;  Urquhart 
V.  Mclver,  4  Johns.  103;  Whitwell  v.  Wells,  24  Pick.  25,  31.  And  see  ante, 
p.  115. 

81  Bailey  v.  Colby,  34  N.  H.  29,  36. 

»2  "A  party  may  lease  his  farm  for  years,  with  the  stoct  and  tools  upon  it; 
the  whole  lease,  it  can  hardly  be  doubted,  may  be  assigned.  A  party  may 
let  furnished  lodgings  for  a  term;  the  lessee  has  an  assignable  interest  in 
the  furniture.  *  *  ♦  So  a  party  who  should  lease  his  livery  "stable,  with 
his  stock  of  horses  and  carriages,  for  a  term  of  years,  could  hardly  com- 
plain if  the  lessee  should  assign  his  interest,  unless  some  restriction  was 
introduced  in  the  lease."  Bailey  v.  Colby,  34  N.  H.  29,  36,  37.  The  hirer's 
transfer  of  his  beneficial  interest  alone,  made  with  due  reservation  of  the 
bailor's  permanent  ownership,  should  be  upheld,  unless  the  use  was  strictly 
personal,  or  precarious.  Vincent  v.  Cornell,  13  Pick.  294;  Nash  v.  Mosher, 
^^  Wend.  431.     See  Fenn  v.  Bittleston,  7  Eich.  152. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PAUTIKiJ LOCATIO    RKl.  I'J'J 

Warranty  of  Tide  and  Bight  of  Possession. 

Wherever  property  is  hired  for  use,  there  is  an  implied  warrantj 
on  the  part  of  the  bailor  that  he  has  sufficient  title  to  make  the  bail- 
ment, and  that  the  bailee  shall  have  quiet  posaessiou.  This  is  the 
rule  of  the  civil  law,  and,  while  no  direct  authority  for  it  has  been 
found  at  common  law,  its  justice  and  propriety  are  so  manif(»st  that 
it  will  doubtless  be  applied  whenever  occasion  shall  arise"  The 
common  law  applies  the  rule  in  the  analogous  case  of  a  lease  of 
lands.  Ever}'  common-law  lease  of  lands  imports  a  covenant  on 
the  lessor's  part  for  quiet  enjoyment."*  This  implied  warranty,  of 
course,  applies  only  against  the  legal  claims  of  third  pei-sons  to  dis 
turb  the  enjoyment  and  use  of  the  thing.  For  tortious  acta  on  their 
part,  the  hirer's  remedy  is  against  them  alone.** 
Bailor  must  Warn  Bailee  of  Defeds. 

The  letter  of  things  for  use  must  exercise  due  care  not  to  expose 
the  hirer  to  danger  of  loss  and  damage  thi-ough  defects  Ln  the  thing 
hired.  He  is  liable  for  injuries  resulting  from  such  defects,  where 
he  failed  to  give  notice  of  them,  provided  they  were  known  to  him, 
or,  by  the  exercise  of  due  diligence,  would  have  been  known."*  The 
bailor  is  only  liable  for  negligence.  What  is  due  and  reasonable 
care,  of  course,  varies  with  circumstances.     In  a  business  involving 

•  3  Schouler,  Bailm.  (2d  Ed.)  §  151;  Story,  Bailm.  §§  383,  387.  "A  pledgor, 
by  the  act  of  pledging,  impliedly  warrants  that  he  is  the  general  owner  of 
the  property  pledged;  and  be  is  hable  to  the  pledgee  in  damages,  if  the  prop- 
erty, or  any  part  of  it,  is  taken  from  the  latter  under  a  superior  title."  Joues, 
Pledges,  §  52.  See  Goldstein  v.  Hort,  30  Gal.  372;  Mairs  v.  Taylor.  40  Ta. 
St.  446;   Cass  v.  Higenbotam,  27  Hun  (N.  Y.)  406. 

»*  Tayl.  LandL  &  Ten.  §  308;   1  Scbouler,  Pers.  Prop.  (2d  Ed.)  S  20. 

95  Baugher  v.  Wilkins,  16  Md.  35;  Playler  v.  Gunningbam.  21  Gal.  229; 
Surget  V.  Arighi,  11  Smedes  &  M.  87. 

»«  It  is  tbe  duty  of  one  wbo  hires  a  horse  to  another  to  give  the  hitter  a 
horse  that  is  manageable  and  safe,  and,  if  the  borse  has  any  vicious  pro- 
pensities, to  inform  the  hirer  of  that  fact;  and  he  is  liable  in  damages  for 
any  injuries  resulting  from  bis  failure  to  impart  such  information.  Ki»- 
sam  V.  Jones,  56  Hun,  432,  10  N.  Y.  Supp.  94.  If  be  gives  him  no  notice  of 
any  vicious  propensity  of  tbe  horse,  except  to  tell  him,  in  answer  to  an  in- 
quiry, that  the  horse  is  all  right,  except  a  litUe  "skeery,"  when  he  knows 
that  the  horse  has  a  vicious  habit,  he  will  be  liable  for  any  Injuries  sus- 
tained by  reason  of  such  vicious  habit.  Id.  Plaintiff  cannot  recover  hire 
of  slave,  if  he  knew  slave  was  unsound,  and  fraudulently  concealed  it  fruin 


200  BAILMENTS    FOR   MUTUAL    BENEFIT HIRENG.  [Ch.   5 

the  personal  safety  and  lives  of  others,  due  care  and  diligence  are 
nothing  less  than  the  most  watchful  care  and  the  most  active  dili- 
gence; and  therefore  livery  stable  keepers  and  others  who  let 
horses  and  carriages  for  hire  are  answerable  to  the  hirer  for  injuries 
which  happen  by  reason  of  defects  in  carriages  which  might  have 
been  discovered  by  the  most  careful  and  thorough  esamination,  but 
not  for  an  injury  which  happens  in  consequence  of  a  hidden  defect 
which  could  not  have  been  discovered  upon  such  examination.' ' 
Liability  to  Third  Persons  for  Negligence. 

Where  injury  results  to  third  persons  from  the  bailee's  use  of  the 
hired  property,  the  bailee  alone  is  answerable.  This  rests  on  nat- 
ural principles  of  justice.  He  alone  has  possession  and  control  of 
the  instrumentality  of  harm,  and  he  alone  ought  to  be  liable.  The 
doctrine  of  respondeat  superior  only  applies  in  cases  where  the  re- 
lation of  master  and  servant  or  principal  and  agent  is  shown  to  ex- 
ist.®® It  does  not  extend  to  cases  of  independent  contracts  not  cre- 
ating those  relations.  A  mere  contract  of  bailment  does  not  create 
such  a  relation.®® 

Incidental  and  Extraordinary  Expenses. 

The  common-law  doctrine  upon  this  point  is  still  unsettled.  The 
express  or  presumed  intention  must  govern;  and,  as  bearing  upon 
this  point,  the  bailment  purpose,  and  the  rate  and  nature  of  the 
recompense,  must  be  considered.  It  would  seem  a  fair  presump- 
tion that  the  parties  intended  the  bailor  to  bear  any  unforeseen  and 
extraordinary  expense,  which  permanently  enhances  the  value  of 

defendant,  providing  the  latter,  within  reasonable  time  after  discovering 
fraud,  offered  to  return  slave  and  rescind  contract  Beading  v.  Price,  3  J.  J. 
Marsh.  (Ky.)  61. 

»7  Hadley  v.  Cross,  34  Vt  586;  Home  v,  Meakin,  115  Mass.  326;  Towler 
V.  Lock,  L.  R.  7  C.  P.  272. 

8  8  Jag.  Torts,  §  77. 

»»  Sproul  V,  Hemmingway,  14  Pick.  1;  Schular  v.  Hudson  Biver  R.  Co., 
38  Barb.  653;  Carter  v.  Berlin  Mills  Co.,  58  N.  H.  52;  Stevens  v.  Armstrong, 
6  N.  Y.  435;  Rapson  v.  Cubitt,  9  Mees.  &  W.  710.  And  see  Powles  v.  Hider, 
6  EL  &  Bl.  207;  Venables  v.  Smith,  2  Q.  B.  Div.  279.  Compare  Eang  v. 
Spurr,  8  Q.  B.  Div.  104,  The  owner  of  a  boat,  who  leases  it  to  another  to  be 
used  as  a  ferry,  is  not  liable  for  an  accident  occurring  on  the  boat  while  in 
use  of  the  latter.  Claypool  y.  McAllister,  20  IlL  504.  And  see  Tuckerman 
T.  Brown,  17  Barb.  191. 


§    41]  RIGHTS    AND    LIABILITIES   OF    PARTIES LOCATIO    RKI.  201 

the  property,  or  wholly  presenes  it  from  loss/°°  provided  the  ex- 
pense was  not  necessitated  by  the  bailee's  fault.  It  seems  equally 
reasonable  that  the  bailee  should  bear  the  ordinary  and  incidental 
expenses  of  caring  for  the  property.*"^  Evidence  of  custom  is  reh-- 
vant  to  show  what  was  the  understanding  of  the  parties.  The  in- 
tention of  the  parties  is  controlling.  Thus,  in  respect  to  animals 
hired,  the  common  understanding  is  that  the  hirer  is  bound  to  pro 
vide  them  with  suitable  food  during  the  time  of  such  hiring,  unless 
there  is  some  agreement  to  the  contraiy.^"^  By  the  civil  law  the 
bailor  was  bound  to  keep  the  thing  hired  in  order  and  repair  suit 
able  for  the  bailment  purpose,  but  this  is  probably  not  true  at  com 
raon  law.^°^ 

Lmbility  for  Negligence. 

The  due  care  demanded  from  a  hirer,  want  of  which  will  render 
him  liable  for  negligence,  is  ordinary  diligence;  that  is,  such  care 
as  business  men  of  average  intelligence  and  prudence  exercise  in 
their  own  affairs.  The  duty  of  the  bailee  being,  then,  to  exercise 
only  ordinary  diligence,  he  is  liable  only  for  injuries  shown  to  have 
been  caused  by  an  omission  of  such  diligence;  that  is,  by  ordinary 
negligence.^"* 

What  is  the  true  extent  of  the  duty  and  diligence  required  of  the 
hirer,  in  the  care  and  custody  of  the  thing  hired,  must  essentially 
depend  upon  the  nature  and  character  of  that  thing,  and  its  lia- 
bility to  loss  or  injury.  A  single  illustration  will  sulTiciently  ex 
plain  this  doctrine  in  one  of  the  most  common  cases  of  hire.      It  is 

100  One  who  hires  a  horse  is  not  liable  for  expense  of  caring  for  it.  If  It 
becomes  sick  in  his  hands  without  his  fault;  but  the  owner  is  liable  there- 
for to  third  person,  who,  with  his  knowledge,  cares  for  it  at  request  of  hirer. 
Leach  v.  French,  G9  Me.  389. 

101  Schouler,  Bailm.  (2d    Ed.)  §  152. 

102  Handford  v.  PjUmer,  2  Brod.  &  B.  359;   Id.,  5  Moore,  74. 

103  Story,  Bailm.  §  392. 

104  Collins  V.  Bennett,  46  N.  Y.  490;  Chamberlin  v.  Cobb,  32  Iowa,  101; 
Millon  v.  Salisbury,  13  Johns.  211;  Haudford  v.  Palmer,  2  Brod.  &  B.  359. 
A  bailee  for  hire  is  only  responsible  for  ordinary  diligence,  and  liable  for 
ordinary  negligence,  in  the  care  of  the  property  bailed.  Clark  v.  U.  S,,  95 
U.  S.  539.  See  Jones,  Bailm.  p.  88;  Story,  Bailm.  §§  398.  :!99;  Domat,  Civ. 
Law,  lib.  1,  tit.  4,  §  3,  pars.  3,  4;  1  Bell,  Comm.  (7th  Ed.)  pp.  481,  483.  See, 
also,  cases  infra. 


202  BAILMENTS    FOB    MUTUAL    BENEFIT HIRING.  [Ch.    5 

the  duty  of  the  hirer  of  a  horse  to  supply  him  with  suitable  food  dur- 
ing the  time  of  the  hiring,  and  therefore  any  neglect  on  his  part,  in 
this  particular,  will  make  him  responsible  to  the  owner  for  the  dam- 
age sustained  thereby.^**'  If  a  hired  horse  is  exhausted,  and  re- 
fuses its  feed,  the  hirer  is  bound  to  abstain  from  using  the  horse; 
and,  if  he  pursues  his  journey  with  the  horse,  he  is  liable  for  all  the 
injury  occasioned  thereby.^"*'  If  a  horse  falls  sick  during  a  jour- 
ney, the  hirer  ought  to  procure  the  aid  of  a  farrier,  if  one  can  be 
obtained  within  a  reasonable  time  or  distance;  and,  if  he  does  pro- 
cure such  aid,  he  is  not  responsible  for  any  mistakes  of  the  farrier 
in  the  treatment  of  the  horse.  But  if,  instead  of  procuring  the  aid 
of  a  farrier,  when  he  reasonably  may,  he  himself  prescribes  unskill- 
fully  for  the  horse,  and  thus  causes  his  death,  he  will  be  responsi- 
ble for  the  damages,  although  he  acts  bona  fide.^°'^ 

Where,  from  its  nature,  the  hirer  must  know  that  the  thing  is 
liable  to  deterioration  or  injury,  this  fact  demands  from  him  the 
exercise  of  greater  diligence  than  in  the  case  of  a  thing  not  supposed 
to  be  liable  to  injury  from  use.^°*  The  value  of  the  thing  must 
also  be  taken  into  consideration,  as  well  as  the  means  at  command 
of  the  hirer  for  securing  its  safe-keeping.  To  a  certain  extent,  the 
character  of  the  hirer,  and  his  reputation  for  care  and  skill,  as 
known  to  the  letter,  will  also  have  an  influence  in  determining 
whether  the  hirer  has  been  negligent.  Thus,  where  the  letter  has 
delivered  a  horse  to  a  person  physically  incapable  of  controlling  him, 

105  Handford  v.  Palmer,  2  Brod.  &  B.  859;    Id.,  5  Moore,  74. 

10  0  Bray  v.  Mayne,  1  Gow.  1.  See  Thompson  v.  Harlow,  31  Ga.  348; 
Graves  v.  Moses,  13  Minn.  33.5  (Gil.  307);  Vaughan  v.  Webster,  5  Har.  (Del.) 
256. 

lOT  Story,  Bailm.  §  405;  Dean  v.  Keate,  3  Camp.  4.  As  to  what  consti- 
tutes ordinary  diligence  on  the  part  of  the  hirer  of  a  horse,  see  Eastman  v. 
Sanborn,  3  Allen,  594;  Cross  v.  Brown,  41  N.  H.  283;  Banfield  v.  Whipple, 
10  Allen,  27;  Edwards  v.  Carr,  13  Gray,  234;  Weutworth  v.  McDuffie,  48  N. 
H.  402;  Rowland  v.  Jones,  73  N.  C.  52;  Ray  v.  Tubbs,  50  Vt.  688;  Bui.s  v. 
Cook,  GO  Mo.  391;  McNeill  v.  Brooks,  1  Yerg.  73;  Harrington  v.  Snyder,  3 
Barb.  380;  Jackson  v.  Robinson,  18  B.  Mon.  1;  Thompson  v.  Harlow,  31 
Ga.  348. 

108  Beale  v.  South  Devon  Ry,  Co.,  12  Wkly.  R.  1115;  Wilson  v.  Brett,  11 
Mees.  &  W.  113.  See  Fortune  v.  Harris,  6  Jones,  532;  Rooth  v.  Wilson,  1 
Bam.  &  Aid.  59. 


§    41]  RIGHTS    AND    LIABI1JTIE3    OF    PAKTIKS L(^CATIO    liKI.  203 

or  has  delivered  a  thing  of  value  to  one  who,  by  reason  of  mtiital 
weakness,  will  not  appreciate  the  care  proper  in  the  safe-keeping 
of  such  a  thing,  it  would  be  manifestly  unjust  to  hold  such  hirer 
to  the  same  degree  of  responsibility  as  a  person  of  ordinary  strength 
and  intelligence,  when  the  fact  of  such  incapacity  was  known  to  the 
letter.^"'  Of  course,  in  such  bailments  as  those  now  under  consid 
eration,  the  skill  of  the  hirer  is  not  such  an  important  element,  nor 
one  demanding  the  same  consideration  from  the  bailor,  as  in  tliose 
bailments  where  services  are  hired  about  or  upon  a  chattel.  In 
cases  of  hired  use,  the  bailor  may  well  roly  upon  the  bailee's  known 
pecuniary  responsibility  to  make  good  any  injury  which  might  occur; 
and,  moreover,  in  this  class  of  cases,  a  personal  use  by  the  hirer  is  not 
always  contemplated.^^" 
Same — Inevitable  Accident,  or  Vis  Major. 

Since  the  whole  duty  of  the  bailee,  in  this  class  of  cases,  is  to 
exercise  good  faith  and  ordinary  diligence  in  carrying  out  the  con- 
tract, he  is  not  liable  when  the  thing  is  lost  or  injured  by  over- 
whelming force  or  inevitable  accident.^ ^^  So,  where  the  hirer  has 
been  ordinarily  careful,  he  is  not  liable  for  a  loss  by  fire,  or  the 
death  of  an  animal,  or  the  natural  deterioration  and  wear  and  tear 
incident  to  its  proper  use.^^^  Robbery  is  consi<3(f^rpd  an  nrnident  t^v 
superior  force.^^^  So  if  the  loss  is  not  strictly  inevitable,  but  there 
has  been  no  omission  of  reasonable  diligence  on  the  part  of  the 
hirer.^^*  Thus,  a  warehouseman  is  not  responsible  for  the  destruc 
tion  of  goods,  deposited  there  for  hire,  by  rats  or  mice,  if  he  hiis  used 

109  Schouler,  Bailm.  (2d    Ed.)  §  138. 

110  Schouler,  Bailm.  (2d   Ed.)  §  138;    Mooers  v.  Larry,  15  Gray,  451. 

111  Story,  Bailm.  §§  408-412;  Watkins  v.  Roberts,  28  Ind.  167;  McRvers 
V.  The  Sangamon,  22  Mo.  187;  Field  v.  Brackctt,  5G  Me.  121;  Hylaud  v. 
Paul,  33  Barb.  241;  Ames  v.  Belden,  17  Barb.  513;  Reeves  v.  The  Ck)ni5Utu- 
tion,  Gilp.  579,  Fed.  Gas.  No.  11,G59. 

112  MiUon  V.  Salisbury,  13  Johns.  211;  Harrington  v.  Sny.ler,  3  Barb.  380; 
Buis  V.  Cook,  60  Mo.  391;  Francis  v.  Shrader,  67  IIL  272;  Reeves  v.  The 
Constitution,  Gilp.  579,  Fed.  Cas.  No.  11,659. 

113  Story,   Bailm.  §  412. 

11*  Menetoue  v.  Athawes,  3  Burrows,  1592;  Longman  t.  Gallni.  Abb. 
Shipp.  pt.  3,  c.  4.  §  8;  Id.  (5th  Ed.)  p.  259,  note  d;  1  BeU,  Comm.  (5th  Ed.) 
pp.  453,  455,  458;  Id.  (4th  Ed.)  §  394;  Reeves  v.  The  Constitution,  Gilp.  579, 
Fed.  Cas.  No.  11,659. 


204  BAILMENTS   FOR   MUTUAL    BENEFIT HIRING.  [Oh.  5 

the  ordinary  precautions  to  guard  against  the  loss.^^'  So,  if  the 
owner  of  slaves  lets  them  to  the  master  of  a  vessel  for  a  voyage,  and 
they  run  away  in  a  foreign  port,  the  master  is  not  responsible  there- 
for, if  he  has  acted  in  good  faith  and  with  reasonable  care,  although 
he  might,  perhaps,  have  exercised  a  higher  power  of  restraint  or 
confinement  over  them.^^"  So,  if  a  horse  is  let  to  hire  for  a  jour- 
ney, and,  without  any  negligence  or  default  of  the  hirer,  he  escapes, 
and  is  lost  or  stolen,  the  hirer  will  not  be  responsible  therefor.^^^ 
Where,  however,  the  bailee's  negligence  exposed  the  thing  hired  to 
danger  of  injury  in  the  way  in  which  it  was  injured,  or  contributed 
to  such  injury,  he  is  liable.^ ^' 

Sarne — Liability  of  Joint  Bailees. 

Where  two  persons  jointly  hire  a  thing  for  use,  and  it  is  injured 
during  such  use  by  the  hirers,  both  may  be  made  to  answer  for  the 
misconduct  or  negligence  of  either  one.^^®  In  a  case,  however,  where 
only  one  hires  a  thing, — as,  for  instance,  a  wagon, — and  invites  an- 
other to  share  in  its  use,  and  such  person  does  so,  but  without  ex- 
ercising any  control,  and  simply  as  a  passenger,  only  he  who  has 
hired  the  wagon  is  responsible.^^" 

Liability  for  Injurious  Ads  of  Servants,  etc. 

The  hirer  is  not  only  liable  for  his  own  personal  default  and  neg- 
ligence, but  for  the  default  and  negligence  of  his  children,  servants, 
and  domestics,   about  the  thing   hired.^^^      If,  therefore,  a  hired 

iiocailifif  V.   Danvers,   Peake,    114.     See   Moore  v.   Mourgue,   Cowp.  479; 
Millon  V.  Salisbury,  13  Johns.  211;  Abb.  Shipp.  (5th  Ed.)  pt.  3,  a  3,  §  9,  p.  244. 
ii«  Beverly  v.  Brooke,  2  "^Mieat.  100. 

117  So,  during  a  war,  where  the  horse  was  taken  from  him  for  the  use  of 
the  army.     Watkins  v.  Roberts,  28  Ind.  167. 

118  Buis  V.  Cook,  60  Mo.  391;  Eastman  v.  Sanborn,  3  Allen,  594;  Edwards 
V.  Carr,  13  Gray,  234;    Wentworth  v.  McDuffie,  48  N.  H.  402. 

119  Davey  v.  Chamberlain,  4  Esp.  229. 

120  Davey  v.  Chamberlain,  4  Esp.  229;  O'Brien  v.  Bound,  2  Speers  (S.  C.) 
495;   Dyer  v.  Erie  Ry.  Co^  71  N.  Y.  228;    Story,  Bailm.  §  399. 

i«i  Pothier,  Contrat  de  Louage,  notes  193,  428;  2  Kent,  Comm.  (4th  Ed.) 
lecL  40,  pp.  586,  587;  Pothier,  Pand.  lib.  19,  tit  2,  note  31.  Pothier  holds 
the  hirer  responsible  for  the  default  or  negligence  of  his  boarders,  guests, 
and  undertenants.  Pothier,  Contrat  de  Louage,  note  193;  1  Domat,  bk.  1, 
tit  4,  §  2,  art.  6.  See,  also,  1  Bell,  Comm.  (4th  Ed.)  8  389;  1  Bell,  Comm. 
(5th  Ed.)  pp.  454,  455. 


§    41]  RIGHTS    AND    LIABILITIES    OF    PAftTIES LOCATIO    KKI.  205 

horse  is  ridden  by  the  servant  of  the  hirer  so  iin moderately  Oiat  he 
is  injured  or  killed  thereby,  the  hirer  is  personally  responsible.'" 
So,  if  the  servant  of  the  hirer  carelessly  and  improperly  leaves  opt-n 
the  stable  door  of  the  hirer,  and  the  hircnl  horse  is  stolen  by  thieves, 
the  hirer  is  responsible  therefor,^*^  So,  if  ready  furnished  lod-^iujjs 
are  hired,  and  the  hirer's  servants,  children,  ^ests,  or  lx)aidi'rs 
negligently  injure  or  deface  the  furniture,  the  hirer  is  responsible 
therefor.^**  So,  if  the  injury  is  done  by  subagents  employed  by  the 
hirer,  the  same  responsibility  for  the  negligent  acts  of  the  former 
about  the  thing  bailed  is  incurred  by  the  latter,^''" 

The  reason  for  this  liability  is  to  be  found  in  the  absence  of  priv- 
ity between  the  bailor  and  tiiose  whom  the  bailee  has  admitted  to 
the  enjoyment  and  use  of  the  hired  chattels.  The  bailor  has  con- 
tracted with  the  bailee  alone,  and  to  him  alone  looks  for  a  due  per- 

122  Jones,  Bailm.  89;  1  Bl.  Comm.  430,  431;  1  Domat,  bk.  1,  tit  4,  §  2.  art, 
5;    1  Bell,  Comm.  (5th  Ed.)  p.  455;    1  Bell,  Comm.  (4tb  Ed.)  §  3b'J. 

123  Jones,  Bailm.  89;  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Salem  Bank  v. 
Gloucester  Bank,  17  Mass.  1. 

12*  Jones,  Bailm.  89;    Pothier,  Contrat  de  Louage,  note  193. 

126  Story,  Ag.  §§  308,  311,  452,  457;  Randelsou  v.  Murray,  3  Nev.  &  V. 
239;  Id-,  8  Adol.  &  E.  109;  Bush  v.  Steinman,  1  Bos.  &  P.  404,  409;  Uil- 
liard  v.  Richardson,  3  Gray,  349;  Laugher  v.  Pointer,  5  Barn.  &  C.  547,  553, 
554;  Boson  v.  Sandford,  2  Salk.  440,  441;  MiUigan  v.  Wedge,  12  Adol.  &  E. 
737;  Quarman  v.  Burnett,  6  Mees.  &  W.  499.  "The  Roman  law  seems  to 
have  been  relaxed  a  little  from  this  severe,  but  important,  rule;  for  it  made 
the  master  responsible  only  when  he  was  culpably  negligent  In  admitting 
careless  guests,  or  boarders,  or  servants  into  his  house.  'Mihi  ita  placet,' 
says  Ulpian  in  the  Digest,  'ut  culpam  etiam  eorum,  quos  induxit  Ihls  serv- 
ants, guests,  or  boarders]  prajstet  sno  nomine,  etsi  nihil  convenit;  si  tiimen 
culpam  in  ducendis  admittit,  quod  tales  habuerit,  vel  suos,  vel  hospiU>s.' 
It  has  been  observed,  by  Pothier  and  Sir  William  Jones,  tliat  this  disUuctlon. 
whether  the  hirer  was  culpably  negligent  ir  not,— that  is,  whether  he  ought 
or  ought  not  to  have  known  of  the  bad  habits  or  carelessness  of  Ills  gucsLs, 
servants,  or  domestics,  who  caused  the  damage,— must  have  been  sulBclently. 
perplexing  in  practice.  The  rule  of  the  common  law,  which  Is  like  that  of 
the  foreign  law  in  modem  times,  is  not  only  more  safe,  convenient,  and  uni- 
form in  its  application,  but  it  imposes  upon  the  hirer  a  salutarj-  diligence 
and  caution  in  regai-d  to  those  who  are  admitted  into  his  house,  or  kept  in 
his  service.  The  latter  can  otherwise  hive  no  other  sufficient  swurltj- 
against  losses  from  the  misconduct  of  guests,  or  boai'ders,  or  Benraiius." 
Story,  Bailm.  §  401. 


206  BAILMENTS    FOR    MUTUAL    BENEFIT HIRINQ.  [Ch.  5 

fonnance  of  the  contract  and  a  safe  return  of  the  property.  If  the 
latter  admits  others  to  the  enjoyment  of  the  nse,  or  employs  others 
to  perform  his  obligations,  they  must  be  considered  as  his  servants, 
agents,  or  instrumentalities,  in  such  use  or  performance,  even 
though  they  be  members  of  his  family,  boarders,  guests,  etc.  The 
whole  doctrine  rests  on  the  universal  principles  of  agency.^*' 

The  master  is  not,  however,  universally  liable  for  the  misdeeds  of 
his  servants-  But  just  where  the  line  is  to  be  drawn  is  a  matter 
of  no  little  difficulty.  On  the  one  hand,  it  is  very  clear  that  the 
master  is  not  liable  for  the  independent  torts  of  his  servants;  but, 
on  the  other  hond,  he  has  been  held  liable  where  he  did  not  au- 
thorize or  know  of  the  servant's  act  or  neglect,  and  even  where  he 
had  disapproved  or  forbidden  it,^^'^  According  to  the  early  Ger- 
manic theory,  the  master  was  absolutely  liable  for  the  torts  of  his 
servant.  The  English  courts  early  recognized  the  doctrine  of  par- 
ticular command  as  the  test  of  the  master's  liability.  By  this  rule 
the  master  was  liable  for  his  servant's  act  only  when  he  had  explic- 
itly commanded  or  consented  to  that  particular  act.  Subsequent- 
ly, the  test  of  liability  was  extended  so  as  to  include  liability  for 
conduct  in  pursuance  of  a  general  command  or  authority,  express  or 
implied.  What  a  servant  was  permitted  to  do  in  the  usual  course 
of  his  business  was  regarded  as  equivalent  to  a  general  command. 
But  even  the  general  command  test  would  exclude  liability  when 
the  act  of  the  servant  was  willful  and  forbidden.  A  more  extended 
liability  on  the  part  of  the  master  is  now  recognized.  But  the 
courts  are  not  in  harmony  as  to  whether  the  limit  of  his  responsibil- 
ity is  determined  by  the  scope  of  the  sei-vant's  authority,  or  by  the 
course  of  his  employment  Under  the  test  of  scope  of  authority,  lia- 
bility attaches,  of  course,  whenever  it  would  attach  under  the  gen- 
eral or  particular  command  tests.  Under  this  test,  the  master  will 
also  be  liable  whenever  the  servant's  conduct  was  for  the  master's 
purpose  or  benefit,  and  not  for  the  servant's  private  purpose, 
whether  it  was  an  excessive  or  mistaken  execution  of  authority,  or 
a  direct  violation  of  the  master's  command.  Scope  of  authority,  as 
a  test  of  the  master's  liability,  depends  for  its  justification  upon 

128  Schouler,  Bailm.  (2d    Ed.)  145. 

UT  Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  46a 


§    41]  RIGHTS    AND    LIABILITIES    OF    PAKTIES LOCATIO    UBL  207 

reasoning  as  to  the  authority  of  the  servant,  and  not  as  to  the  duty 
of  the  master.      It  is  a  limit  assigned  rather  by  public  policy  than 
consistent  logic.      Course  of  employment  is  the  final  test  proposed. 
This  test  rests  upon  the  proposition  that  in  certain  cases  th(.'  mas- 
ter's liability  arises,  not  from  the  relationship  of  master  and  serv- 
tmt,  exclusively,  but  also  from  a  duty  owed  by  the  master  to  the  per- 
son injured.    The  test  is  not  very  definitely  used.    It  is  constantly  con- 
fused with  the  other  tests.     Mr.  Abbott,  in  a  note  to  Mullach  v.  Rid- 
ley,^ ^®  however,  clearly  recognizes  the  distinction:     "Some  say  that 
it  is  only  when  the  act  of  the  servant  is  within  the  scope  of  employ- 
ment of  the  master  that  the  master  is  liable;  others, that  it  is  enough 
that  it  was  in  the  course  of  employment      The  principle  now  recog- 
nized is  that  while  the  employ^  is  acting  in  the  course  of  employment 
the  employer  is  liable,  even  though  the  act  was  without  the  scope  of 
employment, — that  is  to  say,  unauthorized;    and  a  number  of  cases 
-()  so  far  as  to  hold  (and,  it  seems,  justly)  that  if  it  was  done  in  the 
apparent  course  of  his  employment,  and  with  the  implements  and 
facilities  of  the  employer's  place  and  premises,  the  employer  is  lia 
ble,  notwithstanding  the  act  may  have  been  in  a  service  not  stipu- 
lated for  by  the  contract  of  employment  or  during  hours  when  the 
contract  of  employment  did  not  require  any  8er\'ice."      In  other 
words,  the  liability  of  the  principal  is  not  tested  by  the  scope  of 
employment,  but  by  the  course  of  service.     The  duty  owed  by  the 
master  to  a  third  person  may  ariose  from  contractual  or  conventional 
relationship  of  the  master  to  the  person  seeking  to  charge  him  for 
his  servant's  wrong,  especially  where  the  master's  premises,  instru- 
mentalities, and  facilities  of  business  made  the  harm  possible.     The 
true  general  reasons  for  the  master's  liability  would  seem  to  be  that 
the  master  owes  a  duty  to  third  persons,  to  avoid  harming  them, 
which  varies  with  circumstances;   that  he  insures  third  persons 
against  the  violation  of  such  duty;    and  if  his  servant,  in  the  course 
of  his  employment,  violates  such  duty,  the  master  is  the  juridiciaJ 
cause  of  the  consequent  injury.^'" 

128  24  Abb.  (N.  C.)  172,  181. 

129  For  an  exceptionaUy  clear  and  able  discussion  of  a  master's  llnbility 
to  third  persons,  in  which  the  cases  are  exhaustively  cited  and  considered, 
see  Jag.  Torts,  232^280.     The  above  text  is  an  epitome  of  that  discussion. 


208  BAILMENTS    FOB    MUTUAL    BENEFIT HIBINQ.  [Ch.   5 

"rtlr.  limes  ^"  has  clarified  the  subject  by  insisting  that  a  person 
may  act  directly,  by  himself,  or  indirectly,  through  instrumentali- 
nes.  Instrumentalities  may  be  personal,  as  servant  and  agent,  or 
impersonal,  as  a  tiger  or  torpedo.  If  the  right  of  another  be  vio- 
lated, it  is  immaterial  whether  the  violation  was  the  direct  act  of 
the  person  sought  to  be  charged,  or  that  of  his  instrumentality, 
whether  animate  or  inanimate,  rational  or  irrational.  The  servant 
is  an  instrumentality  of  the  master.  If  a  duty  of  the  master  be  vio- 
lated, he  is  liable,  alike,  whether  he  or  his  servant  was  guilty  of  the 
breach. 

In  the  case  of  bailments,  the  bailee  owes  a  duty  to  the  bailor,  to 
exercise  due  diligence  and  to  return  the  property  uninjured.  If  this 
duty  is  violated  by  his  servants,  subbailees,  or  guests,  while  acting 
in  the  course  of  employment  or  permitted  use,  the  bailee  is  liable.^^^ 
Thus,  in  the  case  suggested  by  Mr.  Schouler,^^^  of  a  guest  or  boarder 
admitted  only  to  special  rooms,  if  the  guest  or  boarder  should  break 
into  some  private  room,  forcing  the  lock,  and  there  wantonly  deface 
or  abstract  the  furniture,  the  hirer  of  the  furniture  would  not  be 
liable,  the  harm  not  being  caused  in  the  course  of  the  permitted 
use.  The  boarder  or  guest  was  no  more  than  a  trespasser.  If  the 
master  is  not  engaged  in  a  business  to  which  the  bailment  is  inci- 
dent, and  has  not  engaged  his  servants  with  a  view  to  a  possible 
bailment,  there  is  no  ground  for  holding  him  liable  for  the  wrongful 
appropriation  by  his  servant  of  property  of  which  he  is  a  bailee,  and 
over  which  he  has  given  his  servant  no  control.  But,  if  such  guest 
had  abstracted  or  defaced  the  furniture  in  the  room  to  which  he 
was  assigned,  the  hirer  who  had  admitted  him  there  would  be  clearly 
liable.  If,  however,  the  hirer  had  been  negligent  either  in  guard- 
ing the  furniture,  or  in  admitting  improper  persons  to  its  use,  he 
might  be  liable,  even  in  the  case  first  supposed.^^' 

130  innes,   Torts. 

i»i  ADd  one  who  hires  a  horse  Is  liable  to  the  owner  If  his  servant  takos 
the  horse  for  his  own  purpose,  and,  while  so  using  him,  injures  him  by  neg- 
ligent driving.  C!ouptJ  Co.  v.  Maddick  [1891]  2  Q.  B.  413.  A  warehouseman 
is  not  liable  for  the  loss  of  goods  embezzled  by  his  storekeeper  or  servant,  in 
the  absence  of  gross  negligenca     Schmidt  v.  Blood,  9  Wend.  268. 

1S2  Schouler,  Bailm.  (2d    Ed.)  §  14a 

i»»  Schouler,  Bailm.  (2d  Ed.)  §  146.  See  Smith  v.  Bead,  6  Daly,  33;  Holder 
v.  Soulby,  8  a  B.  (N.  S.)  254;  Dansey  v.  Richardson,  3  EL  &  BL  144. 


§    411  RIGHTS    AND    LIABILITIES    OF    PARTIES LOOATIO    KEI.  209 

Where  the  sen^ant  steps  aside  from  the  course  of  emulovineD^  to 
commit  a  tort^  the  master  is  not  liable.  What  deviation  from  the 
course  of  emplojTnent  will  so  interrupt  the  relation  as  to  make  the 
conduct  exclusively  the  servant's,  is  not  clear.  "The  question  of 
what  is  within  and  what  is  without  the  course  of  em|jloviueut — 
what  is,  and  what  is  not,  an  independent  tort  of  the  servant, — It 
seems,  cannot  be  referred  to  any  very  definite  rule.  Each  case  rests 
on  its  facts."  ^^*      It  is  ordinarily  a  question  for  the  jury.""^ 

Redelivery. 

Another  implied  obligation  of  the  hirer  is  to  restore  the  thing 
hired,  when  the  bailment  is  determined.^ ^®  He  is  bound  to  restore 
it  to  the  owner;  and  if,  by  any  negligence  or  wrongful  act,  it  is  de- 
livered to  some  other  person,  and  thereby  is  lost  to  the  owner,  he 
will  be  responsible  therefor.  If  it  is  delivered  to  another  person,  it 
amounts  to  a  conversion.^ ^^  So,  the  hirer  is  to  restore  it  in  as  good 
condition  as  he  received  it,  unless  it  has  been  injured  by  some  in- 
ternal deca^',  or  by  accident,  or  by  some  other  means,  wholly  with- 
out his  default.^**  If  it  has  sustained  any  injury  by  his  neglect,  he 
is  liable  for  all  the  damages,  notwithstanding  the  owner  has  re- 
ceived it  back.^^®  If  the  hirer,  instead  of  delivering  back  the  thing, 
pays  its  full  value  to  the  owner,  on  account  of  the  injury  sustained  by 
his  own  negligence,  he  becomes  henceforth  the  proprietor  of  the 
thing,  and  the  letter  has  no  longer  any  title  to  it.     So,  the  bailee  is 

184  Jag.  Torts,  279,  citing  many  cases  illustrating  the  general  rule. 

186  Lang  V.  New  York,  L.  E.  &  W.  R.  Co.,  80  Hun,  275,  30  N.  Y.  S.  137. 
Cf.  Towanda  Coal  Co.  v.  Heemam,  86  Pa.  St.  418;  Bank  of  New  South 
Wales  V.  Owston,  L.  R.  4  App.  Cas.  270. 

138  Syeds  v.  Hay,  4  Term  H.  2G0,  per  Buller,  J.;  Pothier,  Contrat  de 
Louage,  note  197;  Pothier,  Pand.  lib.  19,  tit.  2,  notes  27,  28,  29.  See,  also, 
Schouler,  Bailm.  (2d  Ed.)  §  158;  Cobb  v.  Wallace,  5  Cold.  539;  European  & 
Australian  Royal  Mail  Co.  v.  Royal  Mail  Steam  Packet  Co.,  8  Jur.  (N.  S.) 
Via;  Erwiu  v.  Arthur,  01  Mo.  CSO;  ante.  p.  11. 

137  Stephenson  v.  Hart,  4  Biug.  47(i;  Stcpli^ns  v.  Elwnll.  4  Mnulo  <t  S. 
259;  Youl  v.  Harbottle,  Peake,  08;  Devereux  v.  Barclay,  2  Burn.  cN:  AM. 
702;    Willard  v.  Bridge,  4  Barb.  (N.  Y.)  361. 

138  Pothier,  Contrat  de  Louage,  notes  197,  198,  200;  Pothier,  Paud.  lib.  19, 
tit.  2,  notes  27,  28,  29;  1  Domat,  bk.  1.  tit.  4,  §  2,  note  11;  Oooper  v.  Barton. 
8  Camp.  5,  note;    Millon  v.  Salisbury,  13  Johns.  211. 

188  Reynolds  v.  Shuler,  5  Cow.  323. 

LAW  BAILM. — 14 


210  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

liable  for  an  injury  to  the  goods  caused  by  his  negligence  while  in  his 
possession,  notwithstanding  a  subsequent  like  loss  by  inevitable  ac- 
cident or  irresistible  force.^*" 

The  time  and  the  place  and  the  mode  of  restitution  of  the  thing 
hired,  and  the  person  to  whom  it  is  to  be  restored,  are  governed  by 
the  circumstances  of  each  particular  case,  and  depend  upon  the 
same  rules  of  presumption  of  the  intention  of  the  parties,  and  the 
same  general  principles  of  law,  as  are  applicable  in  other  cases  of 
bailment. 

Compensation. 

At  the  termination  of  the  bailment,  it  is  the  bailee's  duty  to  pay 
the  agreed  hire.  If  no  fixed  price  is  agreed  on,  then  a  reasonable 
price  is  to  be  paid,  which  reasonable  price  is  usually  ascertained 
by  the  customary  price  at  the  place  where  the  contract  takes  ef- 
fect ^*^  If  there  is  an  agreed  price,  the  hirer  must  pay  that  price, 
unless  he  can  obtain  relief  on  the  ground  of  fraud.  When  the  per- 
formance of  the  bailment  contract  dejjends  upon  the  continual  ex- 
istence of  the  chattel  bailed,  or  its  continued  existence  in  the  same 
condition  that  it  was  when  the  bailment  relation  began,  the  de- 
struction of  the  chattel,  or  an  alteration  in  its  condition  which  makes 
its  continued  use  valueless  to  the  bailee,  discharges  the  bailment 
contract.  This  is  on  the  ground  that  performance  has  become  im- 
possible.^*^ If  the  destruction  was  without  the  fault  of  either 
party,  the  bailee  is  not  liable  to  the  bailor  for  the  compensation 
agreed  in  the  contract,^  *^  nor  is  the  bailor  liable  to  the  bailee  for 
damages  for  nonperformance.^**  But,  if  the  bailee  has  received 
benefits  from  the  contract  prior  to  the  destruction  of  the  thing  bailed, 
then  the  bailor  can  recover  from  him  on  the  implied  contract  to  pay 
what  the  use  was  worth.^*"  Some  cases,  however,  hold  that  a  con- 
no  See  post,  "Ntjj'iigeuce,"  p.  359. 

141  See  ante,  p.  45. 

142  Clark,  Cout.  678,  682. 

1*8  Bacot  V.  Parnell,  2  Bailey  (S.  C.)  424;  Collins  v.  Woodruff,  9  Ark.  463; 
Taylor,  y.  Caldwell,  113  E.  C.  L.  824.  Contra,' Harrison  v.  Murrell,  5  T.  B. 
Mon.  359.'  -M^  ^  »>^  ^t^j-   } 

144  Stewart  v.  Stone,  127  N.  Y,  500,  28  N.  E.  595. 

145  Williams  v.  Holcombe,  1  N.  C.  Repos.  365.  It  was  so  held  during  the 
RetielUon,  where  a  slave  was  hired  for  a  year,  and  the  bailee  lost  his  serv- 


§    41]  RIGHTS    AND    LIABILITIES    OF    PARTIES LOCATIO    HEX.  211 

tract  of  hiring  may  be  divisible,  and  the  compensation  apportioned 
pro  rata  up  to  the  time  of  the  destruction  of  the  thin-;  liircd.'** 
Other  cases  expressly  deny  any  apportionment,  and  base  the  recov- 
ery on  the  reasonable  worth  of  the  use,  instead  of  on  the  contract 
price.^*^  In  cases  where  completion  of  the  bailment  purpose  be- 
comes impossible,  from  causes  not  attributable  to  the  fault  of  tlu' 
bailor,  or  to  the  destruction  of  the  bailed  chattel,  the  bailee  is  still 
liable  to  the  bailor  for  the  agreed  compensation.  If,  however,  the 
bailor's  fault  has  prevented  a  beneficial  use  by  the  bailee,  then  the 
latter  need  not  pay  for  the  hire  of  the  chattel,^*'  Judge  Story's 
statement  ^*'  is  clearly  too  broad,  when  he  says:  '^Yhere  there  has 
not  been  any  use  or  enjoyment  of  the  thing  hired,  without  the  de- 
fault of  the  hirer,  whether  it  has  been  occasioned  by  accident,  or  by 
the  default  of  the  letter,  no  hire  whatsoever  will,  by  the  common 
law,  become  due;  for  that  law  generally  insists  upon  the  contract 
being  fully  and  strictly  performed,  to  entitle  the  letter  to  any  rec- 
ompense." 

Ices  by  reason  of  the  occupation  of  the  state  by  the  Union  forces  before  the 
year  was  past.  Wilkes  v.  Hughes,  37  Ga.  361.  Where  a  horse,  hired  to 
perform  a  certain  journey  and  back,  becomes  disabled  by  lameness  while  on 
his  return,  without  any  fault  on  the  part  of  the  hirer,  so  that  he  is  unable 
to  travel,  and  the  hirer  is  thereby  compelled  to  procure  other  means  of  re- 
turning home,  and  to  incur  expenses  in  consequence  thereof,  those  expenses 
may  be  recouped  against  the  demand  of  the  bailor  for  the  hire  of  the  horse; 
and,  if  they  exceed  the  value  of  the  horse's  sei-vices,  the  bailor  cannot  re- 
cover in  an  action  brought  for  such  services.  Harrington  y.  Snyder,  3 
Barb.  (N.  Y.)  380. 

146  George  v.  Elliott,  2  Hen.  &  M.  (Va.)  5;  Williams  v.  Holcombe,  1  N.  C. 
liepos.  365;  Collins  v.  Woodruff,  9  Ark.  463,  So  held  where  death  of  a  slave 
was  caused  by  bailee's  negligence.  Muldrow  v.  Railway  Co.,  13  Rich.  (S. 
0.)  6"J. 

147  Bacot  V.  Parnell,  2  Bailey  (S.  0.)  424;  Ripley  v.  Wightman,  4  McCord 
(S.  C.)  447. 

14  8  See  Hickok  v.  Buck,  22  Vt  149. 
149  Bailm.  §  417a. 


cL*i  ^^^^i^y/h^ 


A  ^^^ 


212  BAILMENTS    FOB    MUTUAL   BENEFIT HIBINQ.  [Ch.  5 

SAME— LOCATIO  OPERIS,  OR  HIRE  OT  LABOR  AND 
SERVICES. 

42.  In  bailments  for  hired  labor  and  services  about  a  chat- 

tel, the  bailee  must,  in  good  faith,  perform  the  in- 
tended services. 

43.  The  services  to  be   performed   about  a  chattel  depend 

upon  the  special  contract,  and  are  of  almost  infinite 
variety,  but  they  may  be  grouped  in  three  classes, 
viz.: 

(a)  Locatio  operis  faciendi  (p.  213). 

(b)  Locatio  custodiae  (p.  213). 

(c)  Locatio  operis  mercium  vehendarum  (p.  213). 

44.  Unless   varied  by  the    special    contract,    the    normal 

rights  and  liabilities  of  the  parties  are  as  foUoTvs: 

(a)  The  bailee  has  a  special  property  in  the  thing  bailed, 

which  he  may  protect  by  action.  This  special  prop- 
erty is  an  insurable  interest  (p.  214). 

(b)  The  bailee  is  entitled  to  suitable  compensation,  upon 

due  performance  of  the  bailment  (p.  216). 

(c)  Prima  facie,  a  hired   bailee   must  bear  the  ordinary 

and  incidental  expenses  of  executing  the  bailment 
(p.  222). 

(d)  Every  bailee  vrho  performs  services  about  a  chattel 

for  hire  has  a  lien  on  such  chattel  for  his  reasona- 
ble charges  (p.  222). 

(e)  The  title  to  materials  employed  in  repairing  a  thing 

passes  to  the  bailor,  under  the  doctrine  of  accession 
(p.  235). 

(f)  Ordinary  diligence  is  the   measure  of  care  required 

of  bailees  for  hire,  and  they  are  liable  for  losses 
caused  by  a  failure  to  exercise  such  degree  of  care, 
and  only  then  except  in  three  classes  of  cases  (p. 
235). 


§§    -IJ-44]       RIGHTS  AND  I.IABILITIKS  OF  PA  RTIKS LOCATIO  OI'ERIfl.        213 

EXCEPTION— Considerations  of  public  policy  have  im 
posed  exceptional  liabilities  in  three  classes  of 
cases,  viz.: 

(1)  Innkeepers  (p.  254). 

(2)  Common  carriers  (p.  304). 

(3)  Post-oflB.ce  department  (p.  483). 

In  bailments  for  hired  services  about  a  chattel,  the  primary  duty 
of  the  bailee  is  to  perform  the  agreed  services  in  good  faith,  and 
for  any  failure  to  do  so  he  must  respond  in  damages.  What  th<- 
particular  duty  is,  in  any  case,  depends,  of  course,  upon  the  special 
contract.^'"  For  convenience,  however,  all  bailments  for  hired 
services  may  be  divided  into  three  classes:  (1)  Locatio  operis  fa- 
ciendi,  or  the  hire  of  active  labor  and  services,  such  as  of  tailors  to 
make  clothes,  of  jewel(M*s  to  set  jewels,  or  watchmakers  to  repair 
watches.  To  this  class  belong  agents,  factors,  commission  mer- 
chants, and  other  persons  acting  for  a  compensation.  This  bail 
ment  is  closely  analogous  to  a  mandatum,  differing  only  in  tho  fact 
that  the  services  are  rendered  for  a  reward.  (2)  Locatio  custodiie, 
or  the  hire  of  care  and  attention  about  goods, — the  receiving  of 
goods  on  deposit  for  a  reward  for  their  custody.  It  is  true  that 
care  and  attention  about  goods  almost  necessarily  involve  some 
physical  labor,  for  which  reason  such  bailments  might  well  be  treat- 
ed as  instances  of  locatio  operis  faciendi.  Perhaps  the  only  dis- 
tinction between  the  two  classes  is  that  the  princip:il  undertaking 
In  locatio  operis  faciendi  lies  in  feasance;  that  of  locatio  custodise, 
in  custody.^ °^  In  this  class  are  warehousemen,  wharfingers,  and 
other  depositai'ies  for  hire.  Innkeepers,  also,  belong  to  this  class. 
The  custody  of  a  traveler's  goods  is  accessory  to  the  principal  con- 
tract. Public  policy  has  charged  innkeepers  with  exceptional  lia- 
bilities, however,  and  therefore  they  will  be  considered  separately.*'" 

iBo  Upon  a  bailment  of  goods  for  work  and  labor  to  be  done  thereon  by  thi 
bailee,  tlie  contract  between  the  parties  arises  immediately  upon  the  deliv- 
ery of  the  goods  to  the  bailee,' and  he  cannot  afterwards  impose  condltioua. 
nor  limit  his  liability  resulting  from  such  bailment  Dale  v.  Lee,  51  N.  .'. 
Law,  378. 

151  Story,  Bal'.m.  §  422;   Jones,  Bailm.  98. 

»»2  See  post,  p.  254. 


214  BAILMENTS    FOR    MUTUAL    BENEFIT — HIRING.  [Ch.   5 

(3)  Locatio  operis  mercium  vehendarum,  or  the  hired  carriage  of 
goods.  Carriers  of  goods  may  be  divided  into  private  and  public  or 
common  carriers.  Exceptional  liabilities  have  also  been  imposed 
upon  common  carriers ,  for  which  reason,  as  well  as  because  of  the 
importance  of  the  subject,  they  will  be  separately  considered.*"^' 
Postmasters  are  also  carriers  for  hire,  with  exceptional  liabilities.*"* 
Private  carriers  for  hire  may  be  defined  as  those  who,  not  making 
hired  transportation  their  calling,  undertake  to  transport,  for  re- 
ward, on  some  particular  occasion.*"^*  Instances  of  private  carriers 
for  hire  are  not  very  numerous.  There  is  no  essential  difference  in 
principle  between  the  three  classes  just  enumerated.  With  the 
exception  of  postmasters,  innkeepers,  and  common  carriers,  the 
same  principles  control  the  rights  and  liabilities  of  the  parties. 

Special  Prop  erty  of  Bailee — Right  of  Action  against  Third  Persons. 

Bailees  for  hire  of  labor  and  services,  like  bailees  for  hire  of  things 
for  use,  have  a  special  property  in  the  thing  about  which  the  serv- 
ices are  to  be  performed.*^®  The  bailee  has  a  right  to  undisturbed 
possession  of  the  property,  even  as  against  the  bailor,  pending  the 
accomplishment  of  the  bailment  purpose.*"^  He  has  a  right  to 
earn  the  stipulated  compensation.  He  may  maintain  trespass  or 
trover  to  protect  his  interest.* °*  Thus,  where  a  bailee  of  yarn  was 
to  procure  it  to  be  made  into  cloth  for  a  commission,  it  was  held 
that  he  had  a  special  property  in  the  yam,  and  that  he  might  main- 
tain an  action  against  any  one  who  should  wrongfully  take  it  from 
his  own  possession,  or  from  that  of  his  servant,  to  whom  he  had  de- 
livered it  to  be  woven.*"' 

153  See  post,  p.  304. 

164  See  post,  p.  483, 

iBo  Schouler,  Bailm.  (2d.  Ed.)  §  96;  Story,  Ballm.  §§  457-459;  White  v. 
Bascom,  28  Vt  268;  Pennewill  v.  Cullen,  5  Har.  (Del.)  238.  See,  also,  post, 
p.  301. 

108  Story,  Bailm.  §  422a. 

1"  Scliouler,  Ballm.  (2d.  Ed.)  §  110. 

168  Shaw  v.  Kaler,  100  Mass.  448;  Burdict  v.  Murray,  3  Vt  302;  Evans  v. 
Nlchol,  4  Scott,  N.  R.  43.  But  see  Morse  v.  Androscoggin  R.  Co.,  39  Me.  285; 
In  re  Phoenix  Bessemer  Steel  Co.,  4  Ch,  DIv.  112. 

169  Eaton  y.  Lynde,  15  Mass.  241. 


§§    42-44]       RIGHTS  AND  LIABILITIES  OF  PAUTIKS LOCATIO  Ol'EUIS.        215 

Same — Insurable  Interest. 

The  special  property  of  a  hired  bailee  is  of  siifficirnt  value  to  give 
him  an  insurable  interest  in  the  subject  of  the  bailment.*"'  Under 
a  policy  of  insurance  the  bailee  may  recover  the  entire  loss  to  the 
property,  and  is  not  limited  to  his  interest  as  bailee,  unless  the  f)ol- 
icy  so  provides.^®^  But  any  excess  over  his  own  interest  which  a 
hired  bailee  may  recover  must  be  held  in  trust  for  the  bailor."* 
The  bailee  may  recover  the  entire  loss,  because  he  is  accountable 
over  to  the  owner  for  the  insurance  money;  holding  it,  as  he  did 
the  goods,  in  trust."'  But  the  bailee  is  entitled  first  to  full  in- 
demnity for  his  own  loss. 

160  Fire  Ins.  Ass'n  of  England  v.  Merchants'  &  Miners'  Transp.  Co.,  68 
Md.  339;  Sheppard  v.  Peabody  Ins.  Co.,  21  W.  Va.  368.  The  policy  Is  valid, 
though  taken  without  direction  of  or  notice  to  the  owner.  Waters  v.  Mon- 
arch Fire  &  Life  Assur.  Co.,  5  El.  &  Bl.  870. 

161  Stillwell  V.  Staples,  19  M.  Y.  401;  Waring  v.  Indemnity  Fire  Ins.  Co., 
45  N.  Y.  606;  Johnson  v.  Campbell,  120  Mass.  449;  California  Ins.  Co.  v. 
Union  Compress.  Co.,  133  U.  S.  387,  409,  10  Sup.  St.  365;  Waters  v.  Monarch 
Fii-e  &  Life  Assur.  Co.,  5  El.  &  Bl.  870.  Where  the  policy  is  ambiguous,  as 
to  whether  it  covers  the  whole  property,  or  only  the  bailee's  interest,  parol 
evidence  is  admissible  to  show  the  intent  of  the  parties.  Lee  v.  Adsit,  37 
N.  Y.  78.  But  where  the  language  is  unambiguous,  parol  evidence  cannot 
be  received  to  show,  contrary  to  the  terms  of  the  policy,  that  the  insurance 
is  only  on  bailee's  interest.  Home  Ins.  Co,  v.  Baltimore  Warehouse  Co.,  93 
U.  S.  527,  541;  Lancaster  Mills  v.  Merchants'  Cotton-Press  Co.,  89  Tenn.  1. 
14  S.  W.  317. 

162  Stillwell  V.  Staples,  19  N.  Y.  401;  Waring  v.  Indemnity  Fire  Ins.  Co., 
45  N.  Y.  606;  Waters  v.  Monarch  Fire  &  Life  Assur.  Co.,  5  El.  &  Bl.  870. 
Where  the  bailee  has  insured  the  entire  property,  the  owner  is  entitled,  by 
adopting  such  insurance,  to  the  benefit  thereof,  and  such  adoption  may  be 
made  even  after  loss.  Wiltenberger  v.  Beacom,  9  Pa.  St.  198;  Finney  v. 
Fairhaven  Ins.  Co.,  5  Mete.  (Mass.)  192;  Waring  v.  Indemnity  Fire  Ins.  Co., 
supra.  No  particular  form  of  adoption  is  necessary.  The  question  is  one 
of  fact  Hooper  v.  Robinson,  98  U.  S.  528,  537;  Fire  Ins.  Ass'n  of  England 
f.  Merchants'  &  Miners'  Transp.  Co.,  supra. 

163  Reitenbach  v.  Johnson,  129  Mass.  316.  Warehouseman  insuring  prop- 
erty in  his  custody,  under  a  contract  requiring  him  so  to  do,  is,  in  respect 
to  such  insurance,  the  trustee  of  the  owners,  and,  as  such,  bound  to  make 
proofs  of  loss,  and  to  institute  proceedings  for  collection.  Lancaster  Mills 
v.  Merchants'  Cotton-Press  Co.,  89  Tenn.  1,  14  S.  W.  317. 


216  BAILMENTS    FOR    MUTUAL   BENEFIT ^HIRINO.  [Ch.   5 

Compensation. 

The  bailee  in  a  bailment  for  hired  services  has,  from  the  very 
nature  of  the  bailment,  and  as  its  name  implies,  the  right  to  com- 
pensation for  his  services.  As  to  the  amount  of  such  compensation, 
this  may  have  been  fixed  in  the  original  contract,  or  the  work  may 
be  done  with  the  understanding  that  a  reasonable  and  proper  rec- 
ompense shall  be  made  to  the  one  undertaking  the  performance  of 
the  labor  or  service.  The  time  for  making  such  compensation  may 
be  fixed  by  the  established  usage  or  custom  in  similar  cases.  The 
compensation  itself  may  be  payable  in  installments,  or  it  may  be 
payable  only  upon  the  completion  of  the  undertaking.  The  ques- 
tion of  compensation  in  the  case  of  a  hire  of  services  may  arise  in 
three  different  forms,  accordingly  as  the  service  has  been  fully  per- 
formed in  accordance  with  mutual  intent,  or  not,  and  in  each  must 
be  solved  according  to  the  attendant  circumstances. 

Same — Service  Left  Incoviplete. 

The  first  instance  is  where  the  thing  intrusted  to  the  bailee,  and 
while  still  in  his  possession,  perishes  without  fault  on  the  part  of 
the  bailee.  According  to  Pothier,^®*  the  employer  must  compensate 
the  workman  for  the  labor  bestowed  upon  the  thing  by  the  latter, 
unless  this  has  been  otherwise  arranged  by  the  original  contract. 
The  workman  is  entitled,  not  only  to  compensation  for  his  labor,  but 
also  for  material  of  his  own  used  by  him  as  accessorial  to  that  of 
his  bailor.  This  was  decided  in  an  early  English  case,^^"*  which 
[  was  an  action  by  a  shipwright  for  work  and  labor  done,  and  for 
materials  provided,  in  repairing  the  defendant's  vessel.  The  ship 
was  in  the  dock,  and  was  to  have  gone  out  on  the  following  day,  as 
there  were  only  three  hours'  work  remaining  to  be  done.  Before 
the  completion  of  this  work  the  ship  was  burned  by  an  accidental 
fire.  It  was  held  that  the  shipwright  was  entitled  to  recover  for 
his  labor  and  materials.  This  decision  was  based  upon  the  maxim 
that  in  such  a  case  "res  perit  domino."  Such  is  the  common-law 
rule,  which  may,  however,  be  controlled  by  mutual  agreement,  or  in 

i«*  Poth.  Cont  de  Louage,  note  433.     See,  also,  Story,  Bailm.  §  426;   Mene- 
tone  V,  Athawes,  3  Burrows,  1592;   Glllett  v.  Mawman,  1  Taunt.  137. 
18  5  Menetone  v.  Athawes,  8  Burrows,  1592. 


§§    42-44]       KIGHTS  AxND  I.IABILITIK?  OF  PARTIES LOCATIO  OPKRIS.        217 

accordance  with  the  custom  and  usage  In  a  particular  trade.'" 
If,  however,  there  is  a  mutual  understanding  that  thf  work  is  to 
be  done  as  a  whole,  or  by  the  job,  for  a  certain  stipulated  price, 
payable  on  completion  of  the  job,  and  the  thing  perish  before  tho 
completion  of  the  work,  without  fault  of  either  party,  it  would  be 
held,  at  common  law,  that  the  work  must  perish  to  the  workman, 
and  the  thing  must  perish  to  the  employer.^'^  By  this  rule,  there- 
fore, unless  by  a  special  usage  of  trade,  the  workman  will  be  entitled 
to  no  compensation,  pro  tanto,  for  either  work  or  material  whifh  he 
may  have  furnished. 

If  the  work  be  entirely  completed,  but  the  thing  is  not  yet  re- 
turned to  the  employer  at  the  time  of  its  destruction  without  fault 
on  either  side,  the  workman  might  be  held  entitled  to  full  compensa 
tion.  According  to  Mr.  Schouler,^*^  "if  the  workman  had  agreed 
to  furnish  all  or  the  principal  materials  himself,  he  would  have  to 
lose  both  work  and  materials,  his  position  not  being  that  of  a 
bailee  at  all,"  This  rule  is  based  upon  the  fact  that  in  such  caset^ 
the  workman  is  to  be  considered  as  the  owner,  and  the  maxim  "Res 
perit  domino"  applies.  The  rules  just  given  apply  only  In  case 
there  has  been  no  default  by  either  party  to  the  contract,  and  when- 
there  has  been  no  special  agreement  which  will  prevent  or  limit  its 
operation. 

The  question  may  arise  under  a  general  contract  of  hire,  or  under 
a  special  contract.  It  may  arise  where  the  contract  is  yet  executory 
and  open,  or  where  the  work  has  been  finished,  and  the  contract 
executed.     Where  the  work  is  done  under  a  general  contract  of 

i««  Story,  Bailm.  §  42Ga;  Gillett  v.  Mawman,  1  Taunt  137.  Mr.  Brll  lina 
deduced  the  following  as  the  true  rules  on  the  subject:  If  the  work  is  inde- 
pendent of  any  materials  or  property  of  the  employer,  the  manufacturer 
has  the  risk,  and  the  unfinished  work  perishes  to  him.  If  he  is  employed 
in  working  up  the  materials,  or  adding  his  labor  to  the  property  of  the  em- 
ployer, the  risk  is  with  the  owner  of  the  thing  with  which  the  labor  Is  In- 
cori)orated.  If  the  work  has  been  performed  in  such  a  way  as  to  afford  a 
defense  to  the  employer  against  a  demand  for  the  price,  if  the  accident  had 
not  happened  (as,  if  it  was  defectively  or  improperly  done),  the  same  de- 
fense will  be  equally  available  to  him  after  the  loss.     1  Bell,  Comm.  p.  456. 

187  story,  Bailm.  §  426;  Brumby  v.  Smith,  8  Ala.  123;  Appleby  T.  Myera, 
L.  R.  2  C.  P.  651,  656. 

188  Schouler,  Bailm.  (2d.  Ed.)  §  IIL 


218  BAILMENTS    FOR    MUTUAL    BENEFIT — HIRING.  [Ch.  6 

hire,  if  It  is  badly  and  improperly  done,  the  workman  will  be  enti- 
tled to  recover  nothing,  in  case  it  totally  fails  of  being  of  any  use 
or  value,  or  is  wholly  inadequate  to  the  purpose  for  which  it  was 
designed.  But  if  it  has  some  use  or  value,  although  imperfectly  or 
inartiflcially  done,  the  workman  is  entitled  to  recover  as  much  as 
the  labor,  services,  and  materials  are  reasonably  worth,  under  all 
the  circumstances.^®^  Where  the  work  is  left  unfinished  and  in- 
complete, by  the  willful  neglect  or  wanton  refusal  of  the  workman 
to  complete  it,  if  it  has  been  undertaken  to  be  done  by  the  job,  and 
so  the  contract  is  entire,  he  cannot  recover  anything.^''"  And,  if 
he  works  by  the  day,  he  is,  at  most,  entitled  to  no  compensation  be- 
yond what  remains  after  deducting  all  damages  which  the  employer 
may  have  suffered  by  his  omission  or  refusal.^''^  If  the  work  is 
prevented  from  being  completed  by  an  accident  which  no  ordinary 
prudence  could  have  prevented,  the  workman  will  be  entitled  to 
receive  compensation  pro  tanto,  as  we  have  already  seen.^''*  If  he 
is  prevented  from  completing  it  by  the  act  or  negligence  of  the  em- 
ployer, he  will  be  entitled  to  a  full  compensation.^^^ 

On  the  other  hand,  if  the  work  has  been  done  under  a  special  con 
tract,  according  to  the  general  rule  of  the  common  law,  no  compen- 
sation can  be  recovered  under  that  contract,  unless  all  the  terms 
and  stipulations  thereof  have  been  exactly  complied  with  and  ful- 
filled.^'* Thus,  if  a  carpenter  has  undertaken  to  erect  a  house  ac- 
cording to  a  particular  plan,  and  for  a  specified  price,  and  by  his 
own  default  he  does  not  complete  the  work,  or  if  he  deviates  from 
the  plan,  or  he  does  the  work  unfaithfully,  unskillfully,  or  improp- 


169  Farnsworth  v.  Garrard,  1  Camp.  38;  Hasten  v.  Butter,  7  East,  479; 
Cutler  V.  Close,  5  Car.  &  P.  337;  Thornton  v.  Place,  1  Moody  &  R.  2J.8;  Grant 
V.  Button,  14  Johns.  377. 

170  Faxon  v.  Mansfield,  2  Mass.  147;   Sinclair  v.  Bowles,  9  Barn.  &  C.  92. 

171  Story,    Ballm.    §   441. 

172  Menetone  v.  Athawes,  3  Burrows,  1592;  Russell  v.  Koehler,  06  111.  459; 
Waller  v.  Parker,  5  Coldw.  47G;    Smith  v.  Meegan,  22  Mo.  150. 

178  Dubois  V.  Delaware  &  H.  Canal  Co.,  4  Wend.  (N.  Y.)  285. 

174  Ellis  V.  Hamlen,  3  Taunt.  52;  .Jennings  v.  Camp,  13  Johns.  94;  McMillan 
V,  Vanderlip,  12  Johns.  165;  Cutter  v.  Powell,  6  Term  R.  320.  See,  also, 
Thornton  v.  Place,  1  Moody  &  R.  218;  Cooke  v.  Munstone,  1  Bos.  &  P.  (N.  R.) 
35L 


§§    42-44]       RIGHTS  AND  LIABII  ITIKS  UF  PAUTJKS l.OCATIO  ol'KRIS.        219 

erly,  he  cannot  recover  under  the  special  contract.*"  If  the  work  Is 
not  completed,  he  is  not  entitled  to  recover  anything,  because  the 
special  contract  is  yet  open  and  unexecuted,  and  he  cannot  avail 
himself  of  his  own  default  or  misconduct  to  rescind  it.*^'  If  he  has 
deviated  from  the  plan  or  contract,  or  he  has  done  tho  work  un- 
skillfully  or  improperly,  he  cannot  recover,  because  such  a  devia- 
tion or  misconduct  in  the  work  is  not  fulfillment,  but  is  a  violation, 
of  the  contract,  entitling  the  employer  to  damages. 

Formerly,  it  seems  to  have  been  thought  that  under  any  of  these 
circumstances  the  workman  was  not  entitled  to  recover  any  com- 
pensation whatsoever  in  any  other  form  of  action,  or  upon  a  quan- 
tum meruit.^^^  But  the  doctrines  and  distinctions  now  maintained 
by  the  better  authorities  are  these:  If  the  special  contract  still  re- 
mains open,  and  is  unexecuted  by  the  misconduct  or  default  of  the 
workman,  he  cannot  recover  anything  for  his  work  and  labor  and 
materials  employed  in  part  fulfillment  of  the  contract*^*  If  the 
contract  has  been  rescinded  by  the  parties,  or  the  work  has  not  been 
completed  from  inevitable  accident,  and  is  incapable  of  being  com- 
pleted, or  if  the  employer  has  prevented  or  dispensed  with  the  due 
execution  thereof,  the  workman  is  entitled,  in  the  former  case,  to 
a  compensation  pro  tanto  for  the  work  done,  unless  there  is  some- 
thing in  his  contract  that  prevents  it;^"  and,  in  the  latter  case, 
to  a  full  compensation,  on  account  of  the  default  on  the  other  side.*"" 

178  Ellis  V,  Hamlen,  3  Taunt.  53;  Cousins  v.  Paddon,  2  Cronip.,  Mecs.  & 
R,  547;  Burn  v.  Miller,  4  Taunt.  745,  747;  Taft  v.  Montague,  14  Mass.  2S2; 
JeweU  V.  Scbroeppel,  4  Cow.  504;    Slckels  v.  Pattison,  14  Wend.  257. 

1T6  Jenuin^-s  v.  Camp,  13  Johns.  94.  Cf.  Brumby  v.  Smith,  3  Ala.  123;  Ap- 
pleby V.  Myers,  L.  R.  2  C.  P.  051,  056. 

1T7  Ellis  v.  Hamlen,  3  Taunt.  53. 

178  Sinclair  v.  Bowles,  9  Barn.  &  C.  92;  Clnrk  v.  Smith.  14  Johns.  32C.;  Bny- 
mond  V.  Bearnard.  12  Johns.  274;  Jenniuss  v.  Camp,  13  Johns.  94;  Kaxou  v. 
Mansfield,  2  Mass.  147;  McMillan  v.  VanderUp,  12  Johns.  105;  Champllu  v. 
Butler,  18  Johns.  109. 

179  Robson  V.  Godfrey,  1  Starkle,  275;  Dubois  v.  Delaware  &  H.  Canal  Co., 
4  Wend.  285,  affirmed  15  Wend.  88. 

180  Koon  V.  Greeuman,  7  Wend.  121;  Dubois  T.  Delaware  &  U.  Canal  Co.. 
4  Wend.  285. 


220  BAILMENTS    FOR   MUTUAL  BENEFTT HIRINQ.  [Ch,   6 

Same — Service  not  in  Accord  with  Mutual  Intent. 

If  the  work  has  been  done,  and  fully  completed,  but  not  according 
to  the  terms  of  the  special  contract,  as  if  there  has  been  a  deviation 
from  the  plan  or  contract,  or  a  bad  and  improper  execution  thereof, 
or  the  work  has  not  been  completed  within  the  stipulated  time, 
there  the  workman  will  be  entitled  to  recover  compensation,  or  not, 
according  to  circumstances.  If  the  work  has  been  so  improperly 
and  unskillfully  done  that  it  is  of  no  use,  benefit,  or  value  to  the  em- 
ployer, or  does  not  in  any  manner  whatsoever  answer  the  intended 
purpose,  no  compensation  whatsoever  is  recoverable,^*^  But  if  the 
work,  although  improperly  or  unskillfully  done,  is  still  of  some  use, 
benefit,  and  value  to  the  employer,  the  workman  will  be  entitled  to 
recover  so  much  as  the  work  is  reasonably  worth  to  the  employer, 
under  all  the  circumstances,  making  him  all  due  and  reasonable  de- 
ductions and  allowances  for  damages  caused  by  the  improper  exe- 
cution of  the  work.^*^  If  the  work  has  been  well  and  properly  done, 
but  not  within  the  stipulated  time,  the  workman  will,  in  like  man- 
ner, be  entitled  to  the  compensation  stipulated  in  the  contract, 
making  to  the  employer  all  due  deductions  and  allowances  for  any 
damage  or  loss  occasioned  by  the  delay.^®' 

In  cases  where  there  has  been  a  deviation  from  the  terms  of  the 
contract,  by  doing  any  extraordinary  work,  or  by  using  materials 
of  a  superior  quality  or  value,  not  contemplated  by  the  contract,  the 
undertaker  will  not  be  entitled  to  any  compensation  therefor,  even 
if  such  extraordinary  work  or  superior  materials  have  greatly  en- 
hanced the  value  of  the  thing,  and  are  for  the  benefit  of  the  em- 
ployer, unless  they  have  been  so  done  and  used  with  his  consent,  or 

181  Farnsworth  v.  Garrard,  1  Camp.  38;  Duncan  v.  Blundell,  3  Starkie, 
6;  Basten  v.  Butter,  7  East,  479;  Linningdale  v.  Livingston,  10  Johns.  36; 
Jennings  v.  Camp,  13  Jolins.  94,  97;  Grant  v.  Button,  14  Johns.  377;  Jewell 
V.  Schroeppel,  4  Cow.  564;  Chapel  v.  Hickes,  2  Cromp.  &  M.  214;.  Id.,  4  Tyrw. 
43;  Cutler  v.  Close,  5  Car.  &  P.  337;  Thornton  v.  Place,  1  Moody  &  R.  218; 
Taft  V.  Montague,  14  Mass.  282;   Feeter  v.  Heath,  11  Wend.  477. 

182  Id.     And  see  Hillyard  v.  Crab  tree's  Adm'r,  11  Tex.  264. 

188  Jewell  V.  Schroeppel,  4  Cow.  564.  See  Littler  v.  Holland,  3  Term.  R. 
590;  Philips  y.  Rose,  8  Johns.  30G;  Dubois  v.  Delaware  &  H.  Canal  Co.,  4 
Wend.  285. 


§§    42-44]       RIGHTS   AND  MAI5ILTTIKS  OF  PARTIES T.OCATI')  OPKRIS.         221 

by  his  approval  or  acquiescence."*  Bnt  If,  In  either  case,  the 
deviation  from  the  contract  was  with  the  assent  or  the  acquiescence 
of  the  employer,  then  the  undertalcer  will  be  entitled  to  recover 
upon  the  original  contract,  so  far  as  it  can  be  traced,  and  has  been 
followed,  in  the  execution  of  the  contract,  and  on  a  quanlum  inoruit 
for  the  residue  of  his  senices.^^"  If  the  work  has,  with  the  express 
assent  or  the  acquiescence  of  the  employer,  been  left  incomplete,  or 
the  latter  has  knowingly  dispensed  with  a  perfect  and  skillful  per- 
formance of  it,  in  like  manner  a  full  compensation  can  be  recovered 
by  the  undertaker.^*'  Where  work  has  been  done  on  the  property 
of  the  emploA'er,  it  is  sometimes  difficult  to  deduce  any  just  iufei-- 
ence  of  such  assent  or  acquiescence  or  dispensation  with  the  terms 
of  the  original  contract,  because  he  is  often  compelled  to  use  the 
thing  as  it  is,  with  all  its  imperfections,  especially  if  the  work  is 
done  on  a  thing  of  an  immovable  nature.  But  where  the  thing  is 
of  a  movable  nature,  and  may  be  rejected,  if  unsatisfactory, — as,  for 
example,  a  bureau  made  out  of  a  log  of  mahogany  belonging  to  the 
employer,  or  a  silver  urn  made  out  of  old  silver  furnished  by  ilw 
employer, — there  the  receipt  of  the  article  without  any  objection 
may,  perhaps,  furnish  a  just  ground  to  presume  a  waiver  of  all  objec- 
tions, notwithstanding  the  unskillfuluess  or  incompleteness  of  thi' 
workmanship.^®'^ 

Same — Service  Fully  Performed. 

Where  the  service  contracted  for  has  been  fully  performed,  in 
exact  accordance  with  the  mutual  intent  of  the  parties,  the  bailee- 
is  entitled  to  full  compensation. 

184  1  Bell,  Comm.  (5th  Ed.)  pp.  455,  456;  1  Bell,  Coram.  (4th  Ed.)  §§  391.  393; 
Wilmot  V.  Smith,  3  Car.  &  P.  453;  Lovelock  v.  King,  1  Moody  &  R.  GO;  Burn 
V.  Miller,  4  Taunt.  745,  749. 

185  1  Bell,  Comm.  (5th  Ed.)  pp.  455,  45G;  1  Bell,  Comm.  (4th  Ed.)  §§  391. 
393;  Bank  of  Columbia  v.  Patterson's  Adm'r,  7  Cranch,  299;  Id.,  Pet.  Cond. 
R.  501;  Robson  v.  Godfrey,  1  Starkie,  275;  Id.,  1  Holt,  230;  Pepper  v.  Bur- 
land,  Peake,  103. 

186  Linnincdale  v.  Liviuf,'ston,  10  .Tohns.  36;  Burn  v.  Miller.  4  Taunt.  745. 
749;  Dubois  v.  Delavi-are  &  H.  Canal  Co.,  4  Wend.  285;  Holllnshead  v.  Mac- 
tur,  13  Wend.  276. 

187  Story,  Ballm.  §  441c 


222  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.  6 

Expenses  of  Executing  the  Bailment. 

In  bailment  for  hired  services,  it  is  a  prima  facie  presumption  that 
the  parties  intended  the  expenses  ordinarily  incidental  to  the  exe- 
cution of  the  bailment  contract  to  be  borne  by  the  bailee.  He  is 
presumed  to  have  fixed  his  compensation  high  enoupfh  to  cover 
themj®*  No  such  presumption  applies  in  the  case  of  extraordi- 
nary  expenses  incurred  in  an  unforeseen  and  extreme  emergency. 
Lien. 

It  may  safely  be  laid  down  as  a  general  rule  that  every  bailee 
for  hire  who  performs  services  about  the  goods  of  another  has  a 
lien  on  such  goods  to  secure  his  reasonable  charges.^*®  This  in- 
cludes all  such  mechanics,  tradesmen,  and  laborers  as  receive  prop- 
erty for  the  purpose  of  repairing,  cleaning,  or  otherwise  improving 
its  condition;  ^®°  also,  warehousemen, ^^^  who  merely  keep  goods, 
and  carriers,^®^  who  transport  them.  Agisters  and  livery  stable 
keepers  constitute,  perhaps,  the  only  exceptions.  At  common  law, 
these  two  classes  of  bailees  have  no  lien,  though  one  is  very  gen- 
erally given  them  now  by  statute.^"* 

188  story,  BaUm.  §§  425,  426,  441;  Schouler,  Bailm.  (2d  Ed.)  §  114;  2  Kent, 
Comm.  590;   Wbitlock  v.  Heard,  13  Ala.  776. 

189  Wilson  V.  Martin,  40  N.  H.  88.  "Whenever  a  party  has  expended  labor 
and  skill  in  the  improvement  of  a  chattel  bailed  to  him,  he  has  a  lien  upon 
it."  Be  van  v.  Waters,  Moody  &  M.  235;  Scarf  e  v.  Morgan,  4  Mees.  &  W.  270, 
278;  Harris  v.  Woodruff,  124  Mass.  205;  Morgan  v.  Congdon,  4  N.  Y.  552; 
Mathias  v.  Sellers,  80  Pa.  St.  486;  Farrington  v.  Meek,  30  Mo.  578;  Mclntyre 
V.  Carver,  2  Watts  &  S.  392. 

190  Cowper  v.  Andrews,  Hob.  39,  41a;  Case  of  an  Hostler,  Yel.  67.  And  see 
the  learned  and  valuable  note  of  Mr.  Justice  Metcalf  to  this  case,  in  his  edi- 
tion of  Yelverton  (page  67a),  and  the  authorities  therein  collected  and  com- 
mented upon;  Green  v.  Farmer,  4  Burrows,  2214;  Close  v.  Waterhouse,  6 
East,  523,  note  2;  2  Kent,  Comm.  (5th  Ed.)  635;  Grinnell  v.  Cook,  3  Hill,  485, 
491;   Oaks  v.  Moore,  24  Me.  214. 

191  Bass  V.  Upton,  1  Minn.  408  (Gil.  292);  Low  v.  Martin,  18  111.  280;  Stein- 
man  V.  Wilkins,  7  Watts  &  S.  466.  Wharfingers:  Brookman  v.  Hamill,  43 
N.  Y.  554;  Ex  parte  Lewis,  2  Gall.  483,  Fed.  Cas.  No.  8,310;  Holderness  v, 
Collinson,  7  Bam.  &  C.  212;  Lenckhart  v.  Cooper,  3  Bing.  (N.  C.)  99;  Dresser 
v.  Bosanquet,  4  Best  &  S.  460. 

182  Fuller  V.  Bradley,  l'5  I'a.  St.  120.    See  post,  p.  342. 

193  Ante,  p.  193.  See,  also,  as  to  agisters:  Grinnell  v.  Cook,  3  Hill,  485,  491; 
Goodrich  v.  Willard,  7  Gray,  183;    Miller  v.  Marston,  35  Me.  153;    Lewia  v. 


§.^    42-44]       RIGHTS  AND  I.IAISII  ITIKS  OF  PAUTIKS LOCATIO  OPKIILS.        223 

The  doctrine  of  liens  has  been  much  favored  in  the  law,  and  baH 
been  constantly  extended.  Lord  Kenyon  said  in  Kirknian  v.  Khaw- 
cross  ^°*  that  it  had  been  the  wi.sh  of  the  courts,  in  all  castH^,  and  at 
all  times,  to  carry  the  lien  of  the  common  law  as  far  as  possiblf; 
and  Chief  Justice  Best  said  ^^'^  that  the  doctrine  of  lion  is  so  jnst 
between  debtor  and  creditor  that  it  cannot  be  too  much  favored. 
Owing  to  this  extension  of  the  doctrine,  the  early  and  late  casen 
cannot  be  wholly  reconciled.  "The  truth  is,  the  modern  decisions 
evince  a  struggle  of  the  judicial  mind  to  escape  from  the  narrow 
confines  of  the  earlier  precedents,  but  without,  as  yet,  having  es- 
tablished principles  adapted  to  the  current  transactions  and  con 
venience  of  the  world,"  ^" 

The  right  of  lien  at  common  law  was  originally  confined  to  cases 
where  persons,  from  the  nature  of  their  occupation,  were  under 
obligation,  according  to  their  means,  to  receive,  and  be  at  trouble 
and  expense  about,  the  personal  property  of  others,  and  was  lim 
ited  to  certain  trades  and  occupations  necessary  for  the  accommoda 
tion  of  the  public,  such  as  common  carriers,  innkeepers,  farriers, 
and  the  like.^®^ 

The  doctrine  was  first  extended  so  as  to  include  cases  where  thr 
chattel  had  acquired  additional  value  by  the  labor  and  skill  of  an 
artisan,^"^  and  finally  to  include  almost  every  case  where  a  bailee 

Tyler,  23  Cal.  364;  Wills  v.  Barrister,  36  Vt.  220;  Mlllikln  v,  Jones,  77  HI. 
372;  Alien  v.  Ham,  63  Me.  532  (by  statute);  Chapman  v.  Allen,  Cro.  Car.  271. 
Livery  stable  keepers:  Jackson  v,  Cummins,  5  Mees.  A:  W.  '6oU;  I'arsons  v. 
Gingell,  4  C.  B.  545;  Smith  v.  Dearlove,  6  C.  B.  132;  Miller  v,  Marston,  35 
Me.  153;  Wallace  v,  Woodgate,  1  Car.  &  P,  575;  Hickman  v.  Thomas.  16  Ala. 
666;  McDonald  v.  Bennett,  45  Iowa,  456;  Mauney  v.  Ingram,  78  N.  G.  9G; 
Judson  V.  Etheridge,  1  Cromp.  &  M,  742. 
194  6  Term  R.  14,  17. 

196  Jacobs  V.  Latour,  5  Bing.  130,  132. 

190  Steinman  v.  Wilkins,  7  Watts   &  S.  (Pn.)  406.  467. 

197  Wilson  V.  Martin,  40  N.  H.  SS. 

198  The  services  must  be  such,  to  create  a  lien,  as  to  Improve  the  property 
intrusted  to  the  bailee.  De  Vinne  v,  Kianhard,  11  Wkly,  Dig.  266;  Jackson 
V.  Cummins,  5  Mees.  &  W.  342,  34S;  Scarfe  v.  Morgan,  4  Mees.  &  W,  270; 
Bevan  v.  Waters,  Moody  &  W.  235;  Id.,  3  Car.  &  P.  520;  Forth  v.  Simpson.  13 
Q.  B.  680;   Harris  v.  WoodruH,  124  Mass.  205;  Story,  Bailm.  ("Jth  Ed.)  i  453a, 


224  BAILMENTS    FOR   MUTUAL   BENEFIT HIRING.  [Ch.  5 

for  hire  performs  services  about  the  chattel.^'"  The  cases  are  nec- 
essarily a  little  inharmonious.  The  general  stjitement  of  the  rule 
still  is  that  the  property  must  have  been  enhanced  in  value,  or 
there  will  be  no  lien..^°°  But  this  cannot  be  taken  too  strictly. 
Where  work  is  done  on  a  chattel  in  accordance  with  the  owner's  di- 
rections, an  enhancement  of  value  could  perhaps  be  conclusively 
presumed;  but,  in  the  case  of  a  warehouseman,  in  no  proper  sense 
can  the  property  be  said  to  have  been  enhanced  in  value  by  the  act 
of  the  bailee.  The  truth  is,  the  common-law  lien  is  a  creature  of 
policy.  It  rests  on  its  own  inherent  justness  and  expediency.^ °^ 
Same — Agisters  and  Livery  Stable  Keepers. 

There  is  no  very  satisfactory  reason  for  denying  a  lien  to  agisters 
and  livery  stable  keepers,  and  it  is  very  commonly  given  now  by 
statute,  and  the  parties  were  always  at  liberty  to  stipulate  for  a 
lien.^°'^  Two  reasons  are  usually  given  for  denying  a  lien  in  this 
class  of  cases.  One  rests  upon  the  theory  that  a  lien  only  exists 
when  the  chattel  has  been  enhanced  in  value  by  the  skill  and  labor 
of  the  bailee,  and  it  is  held  that  agisters  and  livery  stable  keepers 
do  not  fall  within  the  rule.^°^  On  the  other  hand,  a  livery  stable 
keeper  has  a  lien  for  the  keep  and  exercise  of  a  horse  sent  to  him 
for  the  purpose  of  being  trained.^"*  In  Scarfe  v.  Morgan  2°°  it  was 
held  that  when  S.  sent  his  mare  to  M.,  a  farmer,  to  be  covered  by 
a  stallion  belonging  to  him,  M.  had  a  lien  on  the  mare  for  the  charge 
for  covering  her.  The  distinction  between  these  two  classes  of 
cases  is  pointed  out  by  Parke,  B.,  in  Jackson  v.  Cummins.^°®     He 

199  "The  right  to  demand  compensation  is,  as  a  rule,  understood  to  carry 
with  it  the  right  of  compelling  compensation  by  a  particular  lien."  Schouler, 
Bailm.  (2d  Ed.)  §  122. 

200  1  Jones,  Liens  (2d  Ed.)  §  742.  See,  also,  Morgan  v.  Congdon,  4  N.  Y. 
552;  King  v.  Humphreys,  10  Pa.  St.  217;  Eaton  v.  Lynde,  15  Mass.  242; 
Burdict  v.  Murray,  3  Vt.  302. 

201  Story,  Bailm.  §  453a;    Steinman  v.  Wilkins,  7  Watts  &  S.  4^6. 

202  Schouler,  Bailm.  (2d  Ed.)  §  126;   Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485,  491. 

203  Story,  Bailm.  453a;  Scarfe  v.  Morgan,  1  Mees.  &  W.  270;  Jackson  t. 
Cummins,  5  Mees.  &  M.  342;   Grinnell  v.  Cook,  3  HiU  (N.  Y.)  485,  491. 

204  Be  van  v.  Waters,  3  Car.  &  P.  520.  And  see  Forth  v.  Simpson,  13  Q.  B. 
£80. 

20 B  4  Mees.  &  W.  270. 
so  a  5  Mees.  &  W.  342. 


§§    42-44]       RIGHTS  AND  LIABILITIF.S  OF  PAUTIKS LOCATIo  (U'LIUS.        22o 

says:  "The  general  rule,  as  laid  down  by  Best,  C.  J.,  in  Bovan  v. 
Waters,  and  by  this  court  in  Scarfe  v.  Morgan,  is  tliat  by  the  gen- 
eral law,  in  the  absence  of  any  specific  agreement,  whenever  a  party 
has  expended  labor  and  skill  in  the  improvement  of  a  chattel  bailed 
to  him,  he  has  a  lien  upon  it.  Now,  the  case  of  an  agistment 
does  not  fair  within  that  principle,  inasmuch  as  the  agister  does 
not  confer  any  additional  value  on  the  article,  either  by  the  exer- 
tion of  any  skill  of  his  own,  or  indirectly,  by  means  of  any  instru- 
ment in  his  possession,  as  was  the  case  with  the  stallion  in  Scarfe 
V.  Morgan.      He  simply  takes  in  the  animal  to  feed  it." 

The  second  reason  why  there  can  be  no  lien  at  common  law  in 
this  class  of  cases  is  a  more  serious  one.  When  horses  are  kept 
at  livery,  the  owner  takes  and  uses  them  at  pleasure,  and  a  bailee 
only  has  a  lien  so  long  as  he  retains  the  uninterrupted  possession. ^"^ 
If  the  owner  gets  the  property  into  his  hands  without  fraud,  the 
lien  is  at  an  end,  and  it  will  not  be  revived  by  the  return  of  the 
goods.^**®  So,  in  the  case  of  milch  cows,  the  agister  has  no  lien, 
for  the  reason  that  the  owner  has  occasional  possession,  for  the  pur- 
pose of  milking  them.*°' 

Same — Consent  of  Owner. 

Inasmuch  as  the  lien  of  a  bailee,  who,  by  his  skill  and  labor,  has 
enhanced  the  value  of  a  chattel,  arises  from  his  employment  to 
render  the  services,  it  will  follow  that  the  employment  must  be 
by  the  owner,  whose  property  is  to  be  affected  by  the  lien,  or  by 
his  consent,  express  or  implied.^^°      In  Hiscox  v.  Greenwood  *"  a 

207  See  post,  p.  '2'ii3. 

20  8  Grinnell  v.  Cook,  8  Hill  (N.  Y.)  485;  Bevan  v.  Waters,  S  Car.  &  P.  B20, 
522;  Jones  v.  Thurloe,  8  Mod.  172;  Jones  v.  Pearle,  1  Strange,  656;  Sweet  v. 
Pym,  1  East,  4. 

209  Jackson  v.  Cummins,  5  Mees.  &  W.  342,  350;   Cross,  Liens,  25,  3G,  332. 

210  1  .Tones,  Liens,  §  733;  Clark  v.  Hale,  34  Conn.  398;  White  v.  Smith,  44 
N.  J.  Law,  105;  Hill  v.  Burgess,  37  S.  C.  G04,  15  S.  E.  9G3.  Cf.  M'Intyre  v. 
Carver,  2  Watts  &  S.  392.  The  bailee  cannot  assert  his  Hen  against  the  true 
owner  of  the  goods  who  has  never  consented  to  such  bailment.  Small  v.  Rob- 
inson, 69  Me.  425;  Globe  Works  v.  Wright,  106  Mass.  207;  GUson  v.  Gwlnn, 
107  Mass.  126;  Hollingsworth  v.  Dow.  19  Pick.  228;  Robinson  v.  Baker.  5 
Cush.  137;  Johnson  v.  Hill,  3  Starkie,  172;  Sargent  v.  Usher,  55  N.  H.  2a7; 
Hanch  v.  Ripley,  127  Ind.  151,  26  N.  E.  70. 

«ii  4  Esp.  174. 

LAW  BAILM.— 15 


226  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.  5 

coach  maker  to  whom  a  carriage  had  been  delivered  for  repairs  by 
the  owner's  servant  was  denied  a  lien  where  the  carriage  had  been 
broken  by  the  negligence  of  the  servant,  without  the  knowledge  of 
the  master,  and  had  been  taken  by  the  servant  to  the  coach  maker 
for  repairs,  without  any  orders  from  his  master.  In  Hollings- 
worth  V.  Dow  ^^^  the  plaintiff  had  purchased  a  machine  of  one  Nes- 
bit,  in  an  unianished  state,  and  had  contracted  with  him  to  finish 
it  for  a  stipulated  sum,  Nesbit  employed  the  defendant,  Dow,  to 
finish  the  machine,  without  the  knowledge  or  consent  of  the  plain- 
tiff; and  it  was  held,  in  replevin,  that  the  defendant  did  not  ac- 
quire a  lien  in  his  own  right  for  his  labor  upon  the  machine.  In 
both  cases  cited,  the  bailment  was  entirely  without  the  authority 
of  the  owner,  and  without  any  circumstances  from  which  his  con- 
sent could  be  implied;  for  although,  in  Hollingsworth  v.  Dow,  the 
owner  knew  while  the  work  was  in  progress  that  the  third  party 
was  doing  the  work,  he  had  contracted  with  another  to  do  it.  It 
must  not,  however,  be  infen'ed  that  the  consent  of  the  owner  to 
such  a  bailment  must  in  all  cases  be  given  with  such  formalities  or 
in  such  a  manner  as  would  create  a  personal  liability  on  his  part  to 
pay  the  charges.  The  property  being  improved  and  enhanced  in 
value  by  the  workman's  labor,  authority  to  have  it  done  on  the 
footing  of  a  workman's  lien  will  be  implied  from  circumstances 
which  would  not  raise  an  implication  of  a  contract  to  pay  the 
charges  to  be  enforced  by  a  suit.  Thus,  where  a  wife  allowed  her 
husband  to  use  her  wagon,  and  he  employed  a  wheelwright  to  make 
certain  necessary  repairs,  who  charged  them  to  the  husband,  sup- 
posing the  wagon  to  be  his,  it  was  held  that  the  wheelwright  had 
a  lien  for  his  charges,  as  against  the  wife.^^^ 

Same — Subcontractors  or  Servants. 

The  lien  does  not  attach  in  favor  of  a  workman  who  is  hired  by 
the  original  bailee  to  do  the  work.  In  such  case  the  possession  and 
lien  are  in  the  master  or  contractor.^^*     Subcontractors  have  no 


ai2  19  Pick.  228. 

ai«  White  V.  Smith,  44  N.  J.  Law,  105. 

814  Quillian  v.  Central  Railroad  &  Banking  CJo.,  52  Ga.  374.    And  see  Whita 
T.  Smith,  44  N.  J.  Law,  105. 


§§    42-41]       RIGHTS  AND  I.IAr.Il.ITIES  OF  PAnriKS I.OCATIO  OPICULS.        227 

Hen,  because  there  is  no  privity  between  them  and  the  o^vner."' 
^'The  lien  belongs  strictly  to  the  person  whnJmfl j:ontrnrJvf^  v'^th 
the  owner  to  do  the  work.'>"«  So  far  as  the  bailee's  lien  is  con- 
cerned it  is  immaterial  whether  he  perform  the  work  personally, 
or  through  an  agent  who  is  paid  a  lump  sura  for  the  whole  work, 
or  through  servants  employed  by  the  day.'^" 

Same — Priority  of  Lden. 

The  priority  of  a  bailee's  lien  for  services,  over  other  liens,  de- 
pends upon  the  circumstances  under  which  the  services  were  ren- 
dered. As  has  been  seen,  the  consent  of  the  owner  is  essential  to 
the  creation  of  any  lien.  The  holder  of  a  prior  mortgage  or  other 
lien  is  regarded,  in  some  respects,  as  an  owner.  Unless  the  serv- 
ices were  performed  under  such  circumstances  that  his  consent 
thereto  can  be  at  least  implied,  his  mortgage  or  lien  will  be  unaf- 
fected by  the  lien.^^*  A  mortgagor  cannot,  by  contract,  create  any 
lien  which  shall  take  precedence  over  the  mort^a^'.-"*  Thus,  in 
Bissell  v."^earce  ^-°  it  was  held  that  a  farmer  who,  under  a  special 
contract  for  a  lien  with  the  owner  of  Imrses  which  were  sulijuL' t 
to  a  prior  morti^age,  kept  and  fed  them  dui'ing  the  winter,  had_ni) 
lien  on  them  for  the  price  of  the  keeping,  as  against  the  mort- 
gagee^ The  contract  was  one  of  agistment,  for  which  the  com- 
mon law  gave  no  lien.      The  lien  arose  simj^ly  by  force  of  the  special 

21 B  Jacobs  V.  Kuapp,  50  N.  H.  71;  Gross  v.  Eiden,  53  Wis.  543,  11  N.  W. 
9;   1  .Jones,  Liens,  §  721. 

216  Jones,  Liens,  §  737. 

217  Jones,  Liens,  §  738;  Hall  v.  Tittabawssee  Boom  Co.,  51  Mich.  377,  10  N. 
W.  770;   Webber  v.  Co^-swell,  2  Can.  Sup.  Ct.  15. 

218  The  mortgagee's  authority  for  the  ci'eation  of  a  lien  may  be  implied 
from  the  mortgagor's  being  allowed  to  remain  in  possession  of  the  chattel 
and  to  use  it  for  profit.  Watts  v.  Sweeney,  127  Ind.  IIG,  26  N.  E.  680;  Ham- 
mond V.  Danielson,  126  Mass.  294;  Loss  v.  Fry,  1  City  Ct.  R.  (N.  Y.)  7;  Beall 
V.  White,  94  U.  S.  382;  Scott  v.  Delahunt,  5  Lans.  (N.  Y.)  372;  Id.,  65  N.  Y. 
128. 

218  A  recorded  chattel  mortgage  on  a  horse  is  superior  to  a  subsequent  lieu 
of  a  livery  stable  keeper,  acquired  under  Mill.  &  V.  Code  Tenn.  §  2760,  where 
the  horse  is  placed  in  the  stable  after  the  making  of  the  mortgage,  without 
the  knowledge  of  the  mortgagee,  though  the  stable  keeper  had  no  notice  In 
fact  of  the  mortgage.    McGhee  v.  Edwards,  S7  Tenn.  506,  11  S.  W.  316. 

22  0  28  N.  Y.  252. 


22{J  BAILMENTS    FOB    MUTUAL    BENEFIT HIRING.  [Ch.  5 

contract  under  which  the  service  was  rendered,  and  had  relation 
only  to  the  date  of  the  contract.  Indeed,  it  is  one  of  the  charac- 
teristics of  common-law  liens,  which  arise  by  operation  of  law,  as 
distinguished  from  liens  created  by  contract  or  statute,  that  the 
former,  as  a  general  rule,  override  all  other  rights  in  the  property 
to  which  they  attach,  and  the  latter  are  subordinate  to  all  prior 
existing  rights  therein. 

Williams  v.  Allsup  ^-^  is  a  leading  case  on  this  subject  In  that 
case  the  plaintiff,  a  shipwright,  detained  a  vessel  for  his  charges 
for  repairs,  as  against  a  mortgagee  under  a  prior  mortgage.  The 
mortgage  had  been  recorded  pursuant  to  the  merchants'  shipping 
act  The  vessel  was  left  in  the  mortgagor's  possession  and  control, 
for  use,  and  was  condemned  as  unseaworthy.  The  shipwright's 
charges  were  for  necessary  repairs,  made  by  the  mortgagor's  direc- 
tion, without  the  knowledge  of  the  mortgagee.  The  court  sustained 
the  shipwright's  lien  for  repairs,  against  the  claim  of  the  mort- 
gagee. The  course  of  reasoning  which  led  to  this  result,  as  ex- 
pressed in  the  opinions  of  the  judges,  is  as  follows:  Erie,  C.  J., 
said:  "I  put  my  decision  on  the  ground  that  the  mortgagee  hav- 
ing allowed  the  mortgagor  to  continue  in  the  apparent  ownership 
of  the  vessel,  making  it  a  source  of  profit,  and  a  means  of  earning 
wherewithal  to  pay  off  the  mortgage  debt,  the  relation  so  created 
by  implication  entitles  the  mortgagor  to  do  all  that  may  be  nec- 
essary to  keep  her  in  an  efiScient  state  for  that  purpose.  The  case 
states  that  the  vessel  had  been  condemned  as  unseaworthy  by  the 
government  surveyor,  and  so  was  in  a  condition  to  be  utterly  un- 
able to  earn  freight,  or  be  an  available  security  or  any  source  of 
profit  at  all.  Under  these  circumstances,  the  mortgagor  did  that 
which  was  obviously  for  the  advantage  of  all  parties  interested; 
he  puts  her  into  the  hands  of  the  defendant  to  be  repaired;  and, 
according  to  all  ordinary  usage,  the  defendant  ought  to  have  a  right 
of  lien  on  the  ship,  so  that  those  who  are  interested"  in  the  ship, 
and  who  will  be  benefited  by  the  repairs,  should  not  be  allowed  to 
take  her  out  of  his  hands  without  paying  for  them.  *  *  *  It 
is  to  be  observed  that  the  money  expended  in  repairs  adds  to  the 
value  of  the  ship;    and,  looking  to  the  rights  and  interests  of  the 

"1 10  C.  B.  (N.  S.)  417. 


§.5    42-44]       RIGHTS  AND  LTAniLITIES  OF  PARTIES LOCATIO  OPERIS.        229 

parties  generally,  it  cannot  be  doubted  that  it  is  much  to  the  ad 
vantage  of  the  mortgagee  that  the  mortgagor  should  be  held  to 
have  power  to  confer  a  right  of  lien  on  the  ship  for  repairs  neces- 
sary to  keep  her  seaworthy.''  Willes,  J.,  said:  "By  the  permis- 
sion of  the  mortgagees,  the  mortgagor  has  the  use  of  the  vessel. 
He  has  therefore  a  right  to  use  her  in  the  way  in  which  vessels  are 
ordinarily  used.  Upon  the  facts  which  appear  on  this  case,  this 
vessel  could  not  be  so  used  unless  these  repairs  had  been  done 
to  her.  The  state  of  things,  therefore,  seems  to  involve  the  right 
of  the  mortgagor  to  get  the  vessel  repaired,  not  on  the  credit  of 
the  mortgagees,  but  upon  the  ordinary  terms,  subject  to  the  ship- 
wright's lien.  It  seems  to  me  that  the  case  is  the  same  as  if  the 
mortgagees  had  been  present  when  the  order  for  the  repairs  wa.«i 
given."  Byles,  J.,  said:  "As  it  is  obvious  that  every  ship  will, 
from  time  to  time,  require  repairs,  it  seems  but  reasonable,  under 
circumstances  like  these,  to  infer  that  the  mortgagor  had  author- 
ity from  the  mortgagees  to  cause  such  repairs  as  should  become 
necessary  to  be  done,  upon  the  usual  and  ordinary  terms.  Now. 
what  are  the  usual  and  ordinary  terms?  VHiy,  that  the  person  by 
whom  the  repairs  are  ordered  should  alone  be  liable  personally,  but 
that  the  shipwright  should  have  a  lien  upon  the  ship  for  the  work 
and  labor  he  has  expended  on  her.  Xor  are  the  mortgagees  at 
all  prejudicially  affected  thereby.  They  have  a  property  aug- 
mented in  value  by  the  amount  of  the  repairs." 

The  doctrine  of  Williams  v.  All  sup  was  applied,  as  against  prior 
mortgagees,  by  the  supreme  court  of  New  York,  in  favor  of  the  lien 
of  a  shipwright  for  the  necessary  repairs  of  a  canal  boat,'*'  and  by 
the  supreme  court  of  ^fassachusetts  to  repairs  on  a  hack  described 
in  the  mortgage  as  in  use  in  certain  stables."'  It  will  be  obsen-ed 
that  in  each  of  these  cases  the  right  of  the  workman  to  his  lien 
was  placed  upon  the  ground  that  the  value  of  the  chattel  was  en- 
hanced by  the  labor  of  the  workman,  and  that  it  was  presumt^bly 
the  intention  of  all  parties  that  the  chattel  should  be  kept  in  a 
proper  state  of  repair;  from  which  facts  authority  was  inferred 
that  the  person  in  possession,  and  entitled  to  use  It,  might  have 

»22  Scott  V.  Delahunt.  5  Lans.  372;    Id..  65  N.  Y.  128» 
J»«  Hammond  v.  Danielson,  126  Mass.  294. 


230  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

the  repairs  made  upon  the  usual  and  ordinary  terms;  1.  e.  that, 
the  property  having  been  augmented  in  value  by  the  repairs,  the 
workman  should  have  a  lien  on  it  for  the  work  and  labor  which  en- 
hanced its  value,  and  for  which,  by  the  common  law,  he  would  be 
entitled  to  his  lien,  if  he  was  lawfully  employed  to  render  the  sei- sl- 
ices. 

Same^Scope  of  Lien. 

The  bailee's  lien  for  services  in  respect  to  chattels  is  a  particular 
orspecific  one.  It  secures  only  the^debt  created  by  services  about 
the  specific,  chattel  upon  which  the  lien  is  claimed.^^*  But  the 
lien  extends  to  every  portion  of  the  goods  delivered  under  one  con- 
tract. The  whole  lien  attaches  to  each  and  every  part  of  the 
goods  subject  to  it  If  not  discharged  or  waived,  it  remains  at- 
tached to  whatever  part  of  the  property  may  remain  within  the 
possession  of  the  bailee.^  ^^  A  delivery  of  part  of  the  property  does 
not  necessarily  discharge  the  lien,  either  in  whole  or  pro  tanto. 
It  releases  the  part  delivered  from  the  lien,  but  does  not  discharge 
the  part  remaining  from  the  burden  of  the  whole  lien,  unless  it 
was  the  intention  of  the  parties  to  do  so.  And  this  is  ordinarily 
a  question  of  fact,  for  the  jury.^^^  Where  there  is  an  entire  con- 
tract for  making  or  repairing  several  articles  for  a  gross  sum,  the 
artisan  has  a  lien  on  any  one  or  more  of  the  articles  in  his  pos- 
session, not  only  for  their  proportionate  part  of  the  sum  agreed 
for  repairing  the  whole,  but  for  such  amount  as  he  may  be  enti- 
tled to  for  services  bestowed  on  anv  or  all  of  the  articles  embraced 


224  Miller  V.  Marston,  35  Me,  153,  155;  Mathias  v.  Sellers,  86  Pa.  St,  48G; 
Moulton  V.  Greene,  10  R.  L  330;  Nevan  v.  Roup,  8  Iowa,  207;  Rushforth  v. 
Hadfield,  6  East,  510;  Green  v.  Farmer,  4  Buitows,  2214,  Charge  for  keep- 
ing while  being  held  to  preserve  a  lien  cannot  be  added  to  the  sum  for  which 
a  lien  is  claimed.  Somes  v,  British  Empire  Shipping  Co,,  8  H.  L.  Cas.  338; 
Lord  V.  Collins,  76  Me,  443. 

22  5  When  the  contract  and  the  work  are  entire,  the  lien  extends  to  each 
part,  and  may  be  enforced  to  the  extent  of  the  entire  price  upon  any  portion 
remaining  in  the  possession  of  the  bailee  after  a  partial  delivery.  Schmidt 
V.  Blood,  9  Wend.  268;  Morgan  v,  Oongdon,  4  N.  Y.  552;  Hensel  v.  Noble,  95 
Pa.  St.  345;  Steinman  v.  Wilkins.  7  Watts  &  S.  466;  Myers  v.  Uptegrove,  3 
How.  Prac.  (N,  S,)  31G, 

229  New  Haven  &  Northampton  Co.  v.  Campbell,  128  Mass,  104. 


42-44]       RIGHTS  AND  LIABILITIKS  OF  PAUTIKS LOCATIO  OPKUIS.        231 

in  the  contract.^^^  The  fact  that  the  chattels  are  delivered  to  the 
bailee  in  different  parcels,  and  at  different  times,  is  immaterial  pro- 
vided the  services  are  all  rendered  under  one  contracf  • 

Same — General  Lien. 

"A  general  lien  differs  essentially  from  a  particular  lien  in  this: 
that,  while  the  latter  is  a  right  which  grows  out  of  expense  or 
services  bestowed  on  the  particular  property,  the  former  is  a  right 
to  retain  certain  property  of  another  on  account  of  a  general  bal- 
ance due  from  the  owner."  ^-^  A  general  lien  is  not  favored  in  the 
law,  but  it  may  be  created  by  special  contract,  or  the  custom  and 
usage  of  particular  trades.^^°  It  is  also  said  that  a  lien  exists  to 
secure  a  general  balance  due  in  the  case  of  such  bailees  as  factors, 
calico  printers,  packers,  fullers,  and  other  like  bailees  to  whom 
property  is  delivered,  against  the  several  parts  of  which  it  is  im- 
practicable to  keep  separate  and  distinct  charges.-^ ^  By  analogy, 
an  owner  of  a  sawmill,  who  has  sawed  lumber  for  another  at  a 
stipulated  price  per  thousand,  has  a  lien  on  any  such  lumber  in  his 
possession,  for  a  general  balance  due  him  from  such  person  on  ac- 
count of  lumber  sawed.^"  The  general  lien  does  not  extend  to  a 
balance  on  all  dealings  between  the  parties,  but  only  to  the  gen- 
eral baiance  due  in  that  particular  course  of  dealings.  Thus,  in- 
surance brokers  have  a  lien  on  all  ]^olicies  in  their  hands,  procured 

«27  Hensel  v.  Noble,  95  Pa.  St.  345;  Blake  v.  Nicholson,  3  Maule  &  S.  167; 
Partridge  v.  Dartmouth  College,  5  N.  H.  2S6;  McFarland  v.  Wheeler,  26 
Wend.  467;   Lane  v.  Old  Colony  &  F.  R.  R.  Co.,  14  Gray,  143. 

22  8  Chase  v.  Westmore,  5  :Maule  &  S.  ISO;  Myers  v.  Uptegrove,  3  How.  Prac. 
(N.  S.)  316;    Moulton  v.  Greene.  10  R.  I.  330. 

22  8  Schouler,  Pers.  Prop.  §  3S2. 

230  Schouler,  Bailm.  (2d  Ed.)  §  122;  2  Kent,  Comm.  634;  Story.  A-jt  «  :^"^\ 
Jarvis  v.  Rogers,  15  Mass.  3S9. 

2313  Wait,  Act.  &  Def.  301;  4  Wait,  Act.  &  Def.  319.  320;  7  Wait.  Act.  i 
Def.  215;  Hanna  v.  Phelps,  7  Ind.  21;  Tucker  v.  Taylor.  53  Ind.  93;  Mooney 
V.  Musser,  45  Ind.  115;  East  v.  Ferguson,  .59  Ind.  169;  Shaw  v.  Ferguson.  78 
Ind.  547;  Bunnell  v.  Davisson,  85  Ind.  557.  In  England,  a  whartinger  has  by 
general  usage  a  lien  for  the  general  balance  due  from  the  owner.  Spears  r. 
Hardy,  3  Esp.  SI.  And  see  Weldon  v.  Gould.  3  Esp.  26S;  Savill  v.  Barchard, 
4  Esp.  53;  Naylor  v.  Mangles,  1  Esp.  109;  Rushforth  v.  Hadfield.  6  East.  519; 
Id.,  7  East,  224;   Moet  v.  Pickering,  8  Ch.  Div.  372. 

332  Holderman  v.  Manier,  104  Ind.  118.  3  N.  E.  81L 


232  BAILMENTS    FOR   MUTUAL   BENEFIT HUBINQ.  [Ch.   5 

by  them  for  their  principals,  for  the  payment  of  the  sums  due  them 
for  commissions,  disbursements,  advances,  and  services  in  and  about 
the  same,-^^  but  not  for  the  payment  of  the  balance  of  their  gen- 
eral account,  embracing  items  wholly  disconnected  with  the  busi- 
ness of  the  agency.^'* 

Same —  Waiver  of  Lien,. 

No  lien  arises  where  it  is  obvious  that  the  parties  did  not  in- 
tend that  there  should  be  one;  and,  of  course,  the  party  for  whose 
benefit  the  lien  is  given  may  waive  it,^^°  Where  the  bailment 
contract  is  inconsistent  with  the  existence  of  a  lien,^^^  as  where  a 
term  of  credit  was  provided  for,^*^  or  payment  was  agreed  to  be 

288  story,  Ag.  §  379;  Spring  v.  South  Carolina  Ins.  Co.,  8  Wheat.  268;  Mc- 
Kenzie  v.  Nevins,  22  Me.  138;  Olive  v.  Smith,  5  Taunt.  57;  Castling  v.  Au- 
bert,  2  East,  325. 

2  34  McKenzie  v.  Nevins,  22  Me.  138. 

23  6  Schouler,  Bailm.  (2d  Ed.)  §  323.  Bailee  forfeits  his  lien  by  receipting  to 
stranger  and  acknowledging  that  he  holds  goods  for  him,  or  by  refusing  to 
deliver  goods  to  his  principal  on  other  grounds,  omitting  to  mention  his  lien. 
Holbrook  v.  Wight,  24  Wend.  169. 

236  If  there  be  a  special  agreement  as  to  mode  of  payment,  or  for  a  future 
time  of  payment,  there  is  no  lien.  Trust  v.  Pirsson,  1  Hilt.  292;  Bailey  v. 
Adams,  14  Wend.  201;  Muqjhy  v.  Lippe,  35  N.  Y.  Super.  Ct.  542.  If  the  spe- 
cial agreement  be  broken,  it  has  been  held  that  the  bailee  may  disregard  it 
and  assert  his  lien.  Mount  v.  Williams,  11  Wend.  77.  Insolvency  of  bailor 
will  not  revive  lien  when  it  has  been  waived  by  special  agreement,  Field- 
Lngs  V.  Mills,  2  Bosw.  489.  Where  credit  may  be  claimed  by  custom,  no  lien 
arises.  Raitt  v.  Mitchell,  4  Camp.  146;  Crawshay  v.  Homfray,  4  Bam.  &  Aid. 
50.  If  the  inconsistent  agreement  is  antecedent  to  the  possession,  no  lien  is 
created.  If  it  is  made  afterwards,  the  lien  is  waived.  1  Jones,  Liens,  §  1002; 
Raitt  V.  Mitchell,  4  Camp.  146,  149;  Crawshay  v.  Homfray,  4  Barn.  &  Aid.  50; 
Bailey  v.  Adams,  14  Wend.  201;  Dunham  v.  Pettee,  1  Daly,  112;  Trust  v. 
Pirsson,  1  Hilt.  (N.  Y.)  292;  Chandler  v.  Belden,  18  Johns.  157;  Burdict  v. 
Murray,  3  Vt.  302;  Pinney  v.  Wells,  10  Conn.  103;  Darlington  v.  Chamber- 
lin,  20  m.  App.  443;  Lee  v.  Gould,  47  Pa.  St.  398;  Pulis  v.  Sanborn,  52  Pa.  St. 
308. 

237  Hale  V.  Barrett,  26  111.  195;  Robinson  v.  Larrabee,  63  Me.  116;  Tucker 
V.  Taylor,  53  Ind.  93;  McMaster  v.  Merrick.  41  Mich.  505,  2  N.  W.  895;  Dun- 
ham v.  Pettee,  1  Daly,  112.  "The  operation  of  a  lien  is  to  place  the  property 
in  pledge  for  the  payment  of  the  debt;  and  where  the  party  agrees  to  give 
time  for  payment,  or  agrees  to  receive  payment  in  a  particular  mode,  incon- 
sistent with  the  existence  of  such  a  pledge,  it  is  evidence,  if  nothing  appears 


§§    42-44]       RIGHTS  AND  LIABILITIES  OF   PARTIBS-LOCATIO  OPERIS.  233 

made  in  medical  serrices,""  there  is  no  lien."»  Possession  is  es- 
sential to  the  existence  of  the  lien.  Wliere  the  bailee  volnntarily 
parts  with  possession,  the  lien  is  waived.""  A  wi-onprfnl  sale  or 
pledge  by  the  bailee  will  destroy  his  lien.'"  After  onfp  pnrtin>> 
witli  possession,  the  lien  is  not  revived  by  again  assumiPK  possea- 
sion.-*^ 

Same — Enforcement  of  Lien. 

A  common-law  lien  is  a  mere  right  to  retain  the  possession  un- 
til certain  demands  are  satisfied.  The  bailee  has  no  power  of  sale,  or 
other  remed}^,  unless  given  by  statute  or  coutract.^*^     As  has  been 

to  the  conti-aiy,  that  he  did  not  Intend  to  rely  upon  the  pledge  of  the  goods, 
in  relation  to  which  the  debt  arose,  to  secure  the  payment"    Per  Parker.  J., 
in  Stoddard  Woolen  Manufactory  v.  Huntley,  8  N.  H.  441. 
23  8  Morrill  v.  Merrill,  64  N.  H.  71,  G  Atl.  G02. 

239  But  it  must  affirmatively  appear  that  the  lieu  is  waived.  Where  the 
contract  is  silent  on  the  subject,  the  law  confers  a  lien.  Ilazai'd  v.  MauuinR, 
8  Hun,  G13. 

240  Holderman  v.  Manier,  104  Ind.  118,  3  N.  E.  811;  Tucicer  v.  Taylor,  53 
Ind.  93;  Nevan  v.  Roup,  8  Iowa,  207;  McDouj,'all  v.  Crapon,  95  N.  C.  292; 
Kltteridge  v.  Freeman,  48  Vt.  G2;  In  re  Merrick,  91  Mich.  342,  51  N.  W.  890; 
King  V.  Indian  Orchard  Canal  Co.,  11  Cush.  231;  Stickney  v.  Allen,  10  (Iray, 
352.  Delivery  of  goods  to  third  party,  with  agreement  that  lien  continues, 
forfeits  lien,  unless  third  person  is  under  control  of  bailee.  Walther  v. 
Wetmore,  1  E.  D.  Smith,  7.  A  tailor  does  not  lose  his  lien  by  allowing 
the  customer  to  try  on  the  clothes  made  for  him,  provided  It  Is  done  in  the 
tailor's  presence.     Hughes  v.  Lenny,  5  Mees.  &  W.  183,  187. 

241  Rodgers  v.  Grothe,  58  Pa.  St.  414;  Davis  v.  Bigler,  62  Pa.  St.  242.  The 
lien  is  also  waived  by  claiming  possession  under  an  adverse  title.  Everett 
v.  Saltus,  15  Wend.  474;  Holbrook  v.  Wight,  24  Wond.  1G9;  Mexal  v.  Dear- 
bom,  12  Gray,  336.  Lien  acquired  by  partnership  not  lost  by  dissolution  and 
assignment  by  one  partner  of  his  interest  to  the  other.  Busfleld  v.  Whteler. 
14  Allen,  139. 

242  Hartley  v.  Hitchcock,  1  Staikie,  408;  Howes  v.  Ball,  7  Barn.  &  C.  481; 
Nevan  v.  Roup,  8  Iowa,  207;  Robinson  v.  Larrabee,  63  Me.  116;  Hale  v.  Bar- 
rett, 26  111.  195. 

243  1  Jones.  Liens,  §  1083;  Jones  v.  Pearle,  1  Strange,  557;  LIckbarrow  v. 
Mason,  6  East,  21,  note;  Thames  Iron  Works  Co.  v.  Patent  Derrick  Co.,  1 
Johns.  &  H.  93;  Busfield  v.  Wheeler.  14  Allen,  139;  Rodgers  v.  Grothe.  5S 
Pa.  St  414;  Briggs  v.  Boston  &  L.  R.  Co.,  6  Allen.  24G.  In  Doane  v.  Rus- 
sell, 3  Gray,  382,  Chief  Justice  Shaw  says:  "If  it  be  said  that  a  right  to  re- 
tain the  goods,  without  the  right  to  sell.  Is  of  little  or  no  value.  It  may 
be  answered  that  it  is  certainly  not  so  adequate  a  security  as  a  pledge  with 


234  BAILMENTS    FOR   MUTUAL    BENEFIT HIRING.  [Ch.   5 

seen,  this  absence  of  a  power  of  sale  is  one  of  the  chief  distinctions 
between  a  pledge  and  a  lien.^**  A  power  of  sale  is,  however,  very 
generally  given  by  statute.^*''  The  power  of  sale,  being  in  deroga- 
tion of  common  law,  must  be  strictly  construed  and  followed.  A 
sale  without  authority  constitutes  a  conversion.^** 

a  power  of  sale;  still,  it  is  to  be  considered  that  both  parties  have  rights 
which  are  to  be  regarded  by  the  law,  and  the  rule  must  be  adapted  to  gen- 
eral convenience.  In  the  greater  number  of  cases,  the  lien  for  work  is  small 
in  comparison  with  the  value,  to  the  owner,  of  the  article  subject  to  lien; 
and  in  most  cases  it  would  be  for  the  interest  of  the  owner  to  satisfy  the 
lien  and  redeem  the  goods,  as  in  the  case  of  the  tailor,  the  coach  maker,  the 
innkeeper,  the  carrier,  and  others;  whereas,  many  times,  it  would  cause 
great  loss  to  the  general  owner  to  sell  the  suit  of  clothes  or  other  articles 
of  personal  property.  But,  further,  it  is  to  be  considered  that  the  security 
of  this  lien,  such  as  it  is,  is  superadded  to  the  holder's  right  to  recover  for 
his  services  by  action." 

244  See  ante,  p.  lOG. 

245  "In  most  of  the  states  there  are  statutes  giving  to  mechanics,  artisans, 
and  others  who  bestow  labor  on  personal  property  a  lien  therefor.  The  pur- 
pose of  these  statutes  is,  in  general,  to  extend  the  common-law  lien  in  re- 
spect of  the  persons  who  can  acquire  such  lien,  and  to  give  an  effectual 
remedy  for  its  enforcement,  either  by  sale  after  notice,  or  by  attachment 
and  sale  under  execution.  In  a  few  states  the  lien  is  extended  so  that  it 
may  be  availed  of  within  a  limited  time  after  the  property  has  been  de- 
livered to  the  owner.  But,  generally,  these  statutes,  in  most  respects,  are 
merely  declaratory  of  the  common  law,  and  must  be  interpreted  in  accord- 
ance with  its  principles.  Especially  is  this  so  as  regards  the  necessity  of 
retaining  possession  of  the  property  in  order  to  retain  a  lien  upon  it." 
Jones,  Liens,  749;  McDearmid  v.  Foster,  14  Or.  417,  12  Pac.  813;  McDougall 
V.  Crapon,  95  N.  C.  292.  "The  lien  under  the  statute  is  of  the  same  nature 
it  formerly  was,  and  the  same  circumstances  must  combine  to  create  It. 
There  must  be  a  possession  of  the  thing;  otherwise,  there  cannot,  without  a 
special  agreement  to  that  effect,  be  any  lien.  The  term  'lien,'  as  used  in 
the  statute,  means  the  same  it  ever  did,— the  right  to  hold  the  thing  until 
the  payment  of  the  reasonable  charges  for  making,  altering,  repairing,  or 
bestowing  labor  upon  it.  Possession  of  the  article  is  a  requisite  essential." 
McDearmid  v.  Foster,  14  Or.  417,  12  Pac.  813,  per  Thayer,  J. 

246  Jones  V.  Pearle,  1  Strange,  556;  MuUiner  v.  Florence,  3  Q.  B.  Div.  484; 
Doane  v.  Russell,  3  Gray,  382;  Case  v.  Fogg,  46  Mo.  44;  Jones  v.  Thurloe, 
8  Mod.  172;  Jesurun  v.  Kent,  47  N.  W.  784.  But  in  an  action  for  such  con- 
version the  bailee  may  set  off  the  amount  of  his  lien.  Briggs  v.  Boston  & 
L.  ft.  Co.,  6  Allen,  246;   Rodgers  v.  Grothe,  58  Pa.  St.  414,  416. 


§§    42-44]       RIGHTS  AND  I.IABII.ITIKS  OF  PAUTIES I.OCATIO  OPRUIS.         235 

Title  to  Materials  Used  in  Repairs — Accessum, 

Where  a  hk.ed. bailee  employs  his  own  materials  \n  repairing  a 
thmg_baiIed_to  him,  the  title  to  the  mntennls^piTssog^fn  the  bailor, 
lin^erthe  doctrine  of  accession.'^-'^  This  principle  is  an  iiiiDortaiit 
one,  aSj_in  case  of  accidental  destruction  of  the  Dropertv  li^'for<'-it 
has  be_eiL-i:£d£livered  to  the  bailor,  he  must  beaL-the-enlire  htva.-* " 
The  doctrine  applies  even  though  the  materials  added  were  of  greater 
value  than  the  thing  originally.  The  transaction  remains  a  bail 
ment,  and  is  not  a  contract  of  sale.^"  If  material  is  left  by  the 
owner  with  permission  to  the  artisan  to  return,  not  the  identical 
materials  worked  up  into  a  certain  thing,  but  a  thing  of  the  soi-t 
desired,  made  from  material  belonging  to  the  artisan,  there  would 
then  be  a  transaction  in  the  nature  of  a  sale,  or  of  a  muiuuni  in 
stead  of  a  bailment.^ ''• 

Ldahility  for  Negligence. 

Innkeepers  and  common  carriers,  although  bailees  for  hire,  and 
postmasters  and  other  agents  and  employ(?s  of  the  post-office  de- 
partment, are  subject  to  exceptional  liabilities,  imposed  by  considera- 
tions of  public  policy,  and  consequently  will  be  considered  sepa 
lately  in  the  succeeding  chapters.^**^  In  all  other  cases,  a  bailee 
for  hire  is  bound  to  the  exercise  of  ordinary  diligence;  that  is  to 
say,  the  degree  of  care  which  the  average  business  man  of  ordi- 
nary intelligence  and  prudence  exercises  under  like  conditions  in 
the  conduct  of  his  own  affairs.^'*''     A  failure  on  the  part  of  the 

2*T  story,  Bailm.  §  423;  Scbouler,  Bailm.  (2d  Ed.)  §  99;  2  Scbouler,  Pers. 
Prop.  31-39;    2  Kent,  Comm.  3G0-364. 

248  Ante,  p.  21(). 

249  Gregory  v.  Stryker.  2  Donio,  028. 

250  Ante,  p.  S. 

251  See  post,  pp.  234,  304.  and  483. 

252  Conner  v.  Wintou,  8  Ind.  315.  Exception  ns  to  public  officer,  wlio  Is 
absolutely  liable.  Board  of  Education  of  Village  of  Pine  Lslaud  v.  Jewell. 
44  Miun.  427,  46  N.  W.  914.  An  agreement  to  carry  or  deliver  property  for 
a  reward,  made  by  one  who  is  not  a  common  carrier,  creates  the  duty  to 
exercise  reasonable  care,  but  does  not  impose  a  liabilltj'  on  him  for  losses 
not  occamoned  by  the  ordinary  negligence  of  himself  or  servants.  American 
Dist.  Tel.  Go.  v.  Walker,  72  Md.  454.  When  one  delivers  logs  at  a  custom  saw- 
mill, to  be  sawed  at  agreed  price,  the  owner  of  the  mill  becomes  bound  to 
exercise  ordinary  care  in  keeping  and  manufacturing  the  logs.  and.  in  ca.«o 


236  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Cll.    5 

bailee  to  exercise  ordinary  diligence  is  ordinary  negligence,  and 
will  subject  him  to  liability  for  loss  or  injury  of  the  thing,  result- 
ing therefrom.  On  the  other  hand,  if  the  bailee  has  exercised  such 
ordinary  diligence  in  carrying  out  the  bailment  undertaking,  and 
without  fault  on  his  part  the  thing  intrusted  to  him  perishes  by 
inevitable  accident,  or  by  reason  of  its  defective  nature,^^^  or  by 
the  act  of  public  enemies,^ ^*  the  fact  that  he  has  used  such  ordi- 
nary care  and  diligence  will  exonerate  him  from  blame  or  liability 
for  its  loss  or  destruction.^ °'  If  the  bailee  has  wrongfully  exposed 
the  thing  to  injury  by  irresistible  force,  or  if,  after  such  injury,  he 
has  carelessly  neglected  to  take  measures  to  prevent,  as  far  as  pos- 
sible, further  ill  effects  from  resulting  to  the  thing  in  consequence 
of  such  injury,  the  fact  that  the  real  cause  of  the  injury  was  irre- 
sistible force  will  not  excuse  him.-^^     In  accordance  with  the  doc- 

of  their  loss,  to  prove  that  It  was  without  his  fault.  Gleason  v.  Beers'  Es- 
tate, 59  Vt.  581,  10  Atl.  86.  Cotton  ginuer  is  held  only  to  ordinary  diligence 
and  care  in  custody  of  cotton  delivered  to  him  to  be  ginned.  Kelton  v. 
Taylor,  11  Lea,  264.  As  to  liability  of  banks  as  collecting  agents,  see  Gei*- 
man  Nat.  Bank  v.  Burns,  12  Colo,  539,  21  Pac.  714,  13  Am.  St,  Kep.  247,  and 
note;  National  Butchers'  &  Drovers'  Bank  v.  Hubbell,  117  N.  Y,  384,  22  N.  E. 
1031;  Allen  v.  Merchants'  Bank,  22  Wend.  215,  34  Am.  Dec.  289,  307,  an* 
extended  note.     AS  to  some  other  special  cases,  see  post,  p.   238. 

253  Story,  Bailm.  §  437;  Norway  Plains  Co.  v.  Boston  &  M.  R.  R.,  1  Gray,  2G3; 
Francis  v.  Dubuque  &  Sioux  City  li.  Co.,  25  Iowa,  60;  McCullom  v.  Porter, 
17  La.  Ann.  89;  Waller  v.  Parker,  5  Cold.  (Tenn.)  476;  Cowles  v.  Pointer, 
26  Miss.  253;  Johnson  v.  Smith  (Minn.)  56  N.  W.  37;  Safe-Deposit  Co.  of 
Pittsburgh  v.  Pollock,  85  Pa.  St.  391;  Chenowith  v.  Dickinson,  8  B.  Mon. 
(Ky.)  156;  and  see  post,  p.  368. 

2  04  Abraham  v.  Nunn,  42  Ala.  51;  Smith  v.  Frost,  51  Ga.  336;  WaUer  v. 
Parker,  5  Cold.  476;    Yale  v.  Oliver,  21  La.  Ann.  454;  post,  p.  364, 

255  Waller  v.  Parker,  5  Cold.  (Tenn.)  476.  Unless  he  has  taken  such  risks 
upon  himself  by  the  special  contract.  Story,  Bailm.  §  437;  Russell  v, 
Koehler,  66  111.  459. 

256  Leek  v.  Maestaer,  1  Camp,  138;  Smith  v,  Meegan,  22  Mo.- 150;  James  v. 
Greenwood,  20  La,  Ann,  297,  See,  also,  Story,  Bailm.  §  444;  Piatt  v.  Hib- 
bard,  7  Cow.  (N.  Y.)  497;  Schmidt  v.  Blood,  9  Wend.  268;  Chenowith  v. 
Dickinson,  8  B.  Mon.  156;  Claflin  v.  Meyer,  43  N.  Y.  Super.  Ct  1.  One 
who  undertakes  to  repair  a  boat,  and  places  her  upon  marine  railways  upon 
bank  of  river  for  that  purpose,  is  bound  to  use  at  least  ordinary  care  for 
preservation  thereof.  He  is  liable  in  damages  for  her  destruction  if  he 
launches  her  Into  river  at  time  and  under  circumstances  of  great  danger, 


§§    42-44]       RIGHTS  AND  LIABILITIKS  OK  partIK S— LocaTK)  (.PKUU.        237 

trine  of  proximate  and  remote  cause,  if,  immodiatclj  after  an  in 
jury  resulting  from  tlie  bailee's  negligence,  an  accident  happcnH, 
independent  of  the  bailee's  negligence,  by  which  tlu-  thing  is  d.-' 
stroyed,  the  bailee  is  nevertheless  liable  for  the  damage  caused  bv 
his  negligence,  since  his  negligence  was  tlie  proximate  cause  of 
the  injury.2^5^  H,  however,  the  bailee  is  negligent,  but  his  negli- 
gence is  not  the  cause  of  the  injuij,  he  is  not  liable  merely  by  rea- 
son of  his  negligence."*  The  question  of  what  is  the  proper  dili 
gence  to  be  exercised  by  the  bailee  is  largely  a  matter  of  fact,  and 
varies  with  the  attendant  circumstances,  and  is  also  dependent 
upon  the  nature  of  the  thing,  the  class  of  the  bailee,  and  the  usages 
commonly  followed  by  others  of  his  class.""  Where  a  hired  bailee 
has  undertaken  to  perform  a  certain  work,  the  proper  execution  of 
which  requires  skill,  a  failure  to  possess  and  exercise  that  degree 
of  skill  which  is  ordinarily  possessed  by  others  engaged  in  that 
pari:icular  line  of  employment  is  ordinary  negligence.""      The  par- 

which  he  ought  to  have  foreseen,  and  which  caused  destruction  of  boat  lu 
spite  of  her  owner's  efforts  to  save  her.  This,  although  the  loss  was  occa- 
sioned by  breaking  up  of  the  ice,  and  12  days  after  lauuehiug.  Smith  v. 
Meegan,  22  Mo.  150. 

267  Powers  V.  Mitchell,  3  Hill,  545;  Francis  v.  Castleman,  4  Bibb,  282; 
Claflin  V.  Meyer,  43  N.  Y.  Super.  Ct.,  1;  McGinn  v.  Butler,  31  Iowa,  160. 
See  Stevens  v.  Boston  &  M.  R.  R.,  1  Gray,  277. 

2  58  A  want  of  ordinary  care  in  one  particular,  on  the  part  of  a  warehouse- 
man, does  not  render  him  responsible  for  a  loss  occasioned  by  other  causes 
not  connected  with  that  particular.  Gibson  v.  Hatchett,  24  Ala,  201.  See, 
also,  2  Jag.  Torts,  "Connection  as  Cause,"  929,  975. 

2  59  Usage  may  be  shown  to  qualify  liability  of  bailee.  Keltou  v.  Taylor. 
11  Lea  (Tenn.)  264.  In  Brown  v.  Hitchcock,  28  Vt.  452,  457.  it  was  shown 
that  the  defendant  received  from  the  plaintiff  a  quantity  of  palm  leaf,  apreo- 
ing  to  manufacture  the  same  into  hats,  or  to  return  it  to  plaintifT  on  demand. 
While  in  the  hands  of  the  defendant,  the  leaf  was  injured  by  heat  aiid  mil- 
dew. Isham,  J.,  said:  "We  perceive  no  objection  to  the  admission  of  the 
testimony  in  relation  to  the  usage  and  custom  in  packing  leaf  for  market, 
as  also  the  necessity  and  custom  of  taking  the  leaf  from  the  sacks  and  ex- 
posing it  to  air  to  prevent  its  becoming  injured  and  worthless.  Its  object 
was  «imply  to  ascertain  the  character  and  degree  of  care  which  the  defend- 
ant should  have  exercised,  and  that  which  he  did  exert  over  the  proiKTty 
while  it  was  in  his  possession." 

280  Kuehn  v.  Wilson,  13  Wis.  116;  Hillyard  v.  Crabtree's  Adm'r,  11  Tex. 
264;   Smith  v.  Meegan,  22  Mo.  150;   Baird  v.  Daly,  57  N.  Y.  236;   Moncypeuuy 


238  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.  5 

ties  jnay,  of  course,  stipulate  for  a  different  degree  of  care,  or  as  to 
the  manner  in  which  the  service  shall  be  performed.  If  the  serv- 
ices be  performed  in  the  agreed  manner,  the  bailee  is  not  liable  for 
the  consequences.*®^  So,  also,  the  bailor's  knowledge  of  the  bailee's 
character,  skill,  and  means  of  performance  may  affect  the  under- 
standing as  to  the  degree  of  care  and  skill  to  be  exercised.  Wheve 
the  particular  business  or  employment  requires  skill,  if  the  bailee 
is  known  not  to  possess  it,  or  he  does  not  exercise  the  particular  art 
or  employment  to  which  it  belongs,  and  he  makes  no  pretension 
to  skill  in  it,  there,  if  the  bailor,  with  full  notice,  trusts  him  with 
the  undertaking,  the  bailee  is  bound  only  for  a  reasonable  exercise 
of  the  skill  which  he  possesses,  or  of  the  judgment  which  he  can 
employ;  and,  if  any  loss  ensues  from  his  want  of  due  skill,  he  is  not 
chargeable.^"*  Thus,  if  a  person  will  knowingly  employ  a  common 
mat  maker  to  weave  or  embroider  a  fine  carpet,  he  must  impute 
the  bad  workmanship  to  his  own  folly.*"^  So,  if  a  man  who  has  a 
disorder  in  his  eyes  should  employ  a  farrier  to  cure  the  disease,  and 
he  should  lose  his  sight  by  using  the  remedies  prescribed  in  such 
cases  for  horses,  he  would  certainly  have  no  legal  ground  of  com- 
plaint.^®* In  all  such  cases  the  employer  ought  properly  to  at- 
tribute the  loss  or  injury  to  his  own  rashness,  folly,  or  negligence. 

5.     SAME— SPECIFIC  BAILMENTS  CONSIDERED. 


u^l^ 


Warehousemen — Liability  for  Negligence. 

A  warehouseman  is  one  who  receives  goods  and  merchandise  to 
be  stored  in  his  warehouse  for  hire.-®'     Warehousemen  are  bound 

V.  Hartland,  1  Car.  &  P.  3.52;  Id.,  2  Car.  &  P.  378;  Duncan  v.  Blundell,  3 
Starkie,  6;  Gamber  v.  Wolaver,  1  Watts  &  S.  60;  Farnsworth  v.  Garrard, 
1  Camp.  28;    Aloore  v.  Mourgue,  Cowp.  479. 

261  Story,  Bailm.  §  431;  Schouler,  Bailm.  (2d  Ed.)  §  105.  Where  the  em- 
ployer supersedes  the  judgment  of  the  workman,  and  insists  that  his  own 
plan  be  followed,  the  workman  is  not  liable  for  any  losses  resulting  from 
pursuing  such  method.     Duncan  v.  Blundell,  3  Starkie,  6. 

282  Jones,  Bailm.  63,  98-100;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  914, 
915;   1  Bell,  Com.  (5th  Ed.)  p.  459;   Id.  (4th  Ed.)  §  394. 

268  Jones,  Bailm.  99,  100. 

264  Story,  Bailm.  §  435;  Jones,  Bailm.  99,  100.  For  a  discussion  of  the 
general  principles  of  negligence,  see  ante,  cc.  1,  2. 

26  5  2  Bouv.  Law  Diet.  799. 


§    45]        RIGHTS  AND  LIABILITIES  OF  PARTIES SPECIFIC  BAILMENTS.       230 

to  only  common  and  reasonable  care  of  the  goods  intrusted  to  their 
charge.'""  They  must  exercise  reasonable  care  to  provide  build- 
ings reasonably  fit  and  safe  for  storage.""  In  the  place  as  well  as 
the  method  of  storage,  ordinary  care  should  be  taken,  according  to 
circumstances.^"^  While  ordinarily  a  warehouseman  will  not  be 
liable  for  losses  caused  by  accidental  fire,  yet  if  he  should  have 

288  Warehousemen  are  only  ordinary  bailees  for  hire,  aud  are  bound  only 
to  common  care  and  diligence,  and  are  liable  only  for  want  of  such  dili- 
gence or  care.  Edw,  Bailm.  254;  Jones,  Bailm.  97;  Story,  Ballm.  §  4-14; 
Calliff  V.  Danvers,  Peake,  155;  Foote  v.  Storrs,  2  Barb.  320,  328;  Bogert  v. 
Haight,  20  Barb.  251;  Myers  v.  Walker,  31  111.  353;  Buckingham  v.  Fisher, 
70  III.  121;  Hatchett  v.  Gibson,  13  Ala.  587;  Dimmlck  v.  Milwaukee  &;  Si. 
P.  Ry.  Co.,  18  Wis.  494;  McCullom  v.  Poiter,  17  La.  Ann.  89;  Blin  v.  Mayo. 
10  Vt.  50,  59;  Taylor  v.  Secrist,  2  Disn.  (Ohio)  299;  Cowles  v.  Pointer,  20 
Miss.  253;  Rodgers  v.  Stophol,  32  Pa.  St.  Ill;  Ducker  v.  Barnett,  5  Mo.  97; 
Insurance  Co.  v.  Kiger,  103  TJ.  S.  352.  A  warehouseman  Is  not  liable  as  a 
common  carrier,  but  only  for  ordinary  diligence.  Ducker  v.  Barnett,  5  Mo. 
97;  Cincinnati  &  Chicago  Air  Line  R.  Co.  v.  McCool,  26  Ind.  140;  Holtzclaw 
V.  Duff,  27  Mo.  392;  Titsworth  v.  Winnegar,  51  Barb.  (N.  Y.)  148;  Kuapp  v. 
Curtis,  9  Wend.  (N.  Y.)  00.  The  duty  of  warehousemen  Imposes  on  them  the 
exercise  of  ordinaiy  care  only,  or,  in  other  words,  the  care  and  diligence 
which  good  and  capable  warehousemen  are  accustomed  to  show  under  sim- 
ilar circumstances.  Lancaster  Mills  v.  Merchants'  Cotton-Press  Co.,  89  Tenn. 
1,  14  S.  W.  817.  Whatever  a  diligent  man  would  deem  necessaiT.  undi-r 
any  given  circumstances,  for  the  preservation  of  his  own  propertj',  must 
be  done  by  the  Individual,  or  corporation,  or  city,  that  undertakes,  for  hire, 
the  preservation  of  property  for  the  public.  Willey  v.  Allegheny  City,  118 
Pa.  St.  490.  12  Atl.  453. 

267  Moulton  V.  Phillips,  10  R.  I.  218;  Walden  v.  Finch,  70  Pa.  St.  400.  See 
Hickey  v.  Morrell,  102  N.  Y.  454,  7  N.  E.  321.  Cf.  Hallock  v.  Mallett,  55  N. 
Y.  Super.  Ct.  205.  The  law  does  not  require  a  warehouseman  to  cou.struol 
his  buildings  secure  from  all  possible  contingencies.  If  they  are  reasonably 
and  ordinarily  safe  against  ordinary  and  common  occurrences.  It  Is  suflicienL 
Cowles  V.  Pointer,  20  Miss.  253. 

268  Schouler,  Bailm.  (2d  Ed.)  §  102;  Hatchett  v.  Gibson,  13  Ala.  5S7; 
Jones  V.  Hatchett,  14  Ala.  743;  Chenowith  v.  Dickinson,  8  B.  Mon.  150; 
Moulton  V.  Phillips,  10  R.  1.  218.  The  bailee  may  show  that  the  bailor 
approved  of  the  place  of  storage,  and  that  the  goods  were  damp  when  de- 
livered, and  liable  to  mildew;  and  the  bailor,  that  the  goods  were  In  the 
ordinary  trade  condition,  and  that  the  bailee  knew  they  should  have  bc-en 
aired  and  dried.  Brown  v.  Hitchcock,  28  Vt.  452.  Where  a  bailee  to  store 
cotton  for  hire  permitted  it  to  remain  with  the  roping  off,  the  bagging  torn. 


240  BAILMENTS    FOR   MUTUAL    BENEFIT HIRING.  [Ch.  5 

stored  the  goods  in  a  fireproof  room,"*  or  was  negligent  in  failing  to 
remove  them  to  a  place  of  safety  after  knowledge  of  the  danger,^^*' 
he  is  liable.  So,  also,  warehousemen  are  not  liable  for  losses  caused 
by  rats  *^^  or  thieves,^^^  where  they  have  taken  all  reasonable  pre- 
cautions. In  Chenowith  v.  Dickinson  ^^^  it  appeared  that  900 
barrels  of  salt  were  stored  in  a  frame  warehouse,  on  an  alley.  Two 
hundred  and  forty  barrels  were  stolen,  in  quantities  ranging  from 
20  to  25  barrels  a  day,  so  that  the  entire  240  barrels  were  taken  at 
about  10  different  times,  running  through  a  period  of  1  month.  It 
was  held  that  the  defendants  were  negligent  in  failing  to  exercise 
any  further  care  or  supervision  after  placing  the  salt  in  the  ware- 
house. 

Same — Presumption  of  Negligence — Burden  of  Proof. 

Warehousemen  are  to  be  charged  only  upon  proof  of  their  negli- 
gence, or  that  of  their  servants.     The  burden  of  proof  is  on  the 

the  cotton  loose,  and  the  under  bales  In  the  mud,  whereby  it  was  much  in- 
jured, held,  that  it  was  a  want  of  ordinary  care.  Morehead  v.  Brown,  6 
Jones  (N.  O.)  367. 

2  69  A  warehouseman  who  agrees  to  store  the  property  in  a  fireproof  build- 
ing is  liable  for  any  loss  caused  by  his  failure  to  do  so.  Vincent  v.  Rather, 
31  Tex.  77.  See,  also,  Jones  v.  Hatchett,  14  Ala.  743;  Hatchett  v.  Gibson, 
13  Ala.  587;    Hamilton  v.  Elstner,  24  La.  Ann.  455. 

2T0  Hamilton  v.  Elstner.  24  La.  Ann.  455. 

271  Cailiff  V.  Danvers,  1  Peake,  155.  The  constant  presence  of  a  terrier 
dog  is  sufficient  precaution  (Taylor  v.  Secrist,  2  Disn.  [Ohio]  299,  301);  or  of 
a  cat  (CailifC  v.  Pan  vers,  1  Peake,  155;  Aymar  v.  Astor,  6  Cow.  [N.  Y.]  266, 
267).    But  see,  contra,  Laveroni  v.  Drury,  16  Jur.  1024,  22  L.  J.  Exch.  2. 

272  Moore  v.  Mobile,  1  Stew.  (Ala.)  284;  Coggs  v.  Bernard,  2  Ld.  Raym. 
909;  Vere  v.  Smith,  1  Vent.  121;  Coke,  Inst.  89a;  Southcote  v.  Bennet,  4 
Coke,  83b;  Lamb  v.  Western  Railroad  Corp.,  7  Allen  (Mass.)  98;  Cass  v. 
Boston  &  Lowell  R.  Co.,  14  Allen  (Mass.)  448;  Claflin  v.  Meyer,  75  N.  Y.  260; 
Piatt  V.  Hibbard,  7  Cow.  (N.  Y.)  497;  Schmidt  v.  Blood,  9  Wend.  (N.  Y.)  268; 
Williamson  v.  New  York,  N.  H.  &  H.  R.  Co.  (Super.  Ct  N."  Y.)  4  N.  Y. 
Supp.  834;  Williams  v.  Holland,  22  How.  Prac.  137;  Berry  v.  Marix,  10  La. 
Ann.  248.  Warehousemen  not  chargeable  with  negligence  are  not  answer- 
able for  goods  intrusted  to  them,  in  case  of  robber^',  or  when  embezzled  by 
their  storekeeper  or  servant;  and  the  onus  of  showing  negligence  is  on  the 
owner.  Schmidt  v.  Blood,  9  "S^'end.  (N.  Y.)  208;  Moore  v.  Mayor,  etc.,  of 
Mobile,   1  Stew.   (Ala.)   284. 

27  3  8  B.  Mon.  (Ky.)  156. 


?    45]  RIGHTS   AND  LIABILITIES  OF  PARTIES SPECIFIC  BAILMBNTfl.       241 

plaintiff."*  But  a  failure  or  refusal  by  a  warehouseman  to  deliver 
on  demand  goods  intrusted  to  him,  or  a  retum  of  the  goods  in  a 
damaged  condition,  is  prima  facie  evidence  of  negligence  sufflcit-nt 
to  cast  upon  him  the  burden  of  accounting  for  nondelivery.'^"  In 
other  words,  the  burden  of  proving  negligence  rests  on  plaintiff 

«74  Draper  v.  Delaware  &  H.  Canal  Co.,  118  N.  Y.  118,  23  N.  E.  131;  Plutt 
V.  Hibbard,  7  Cow.  (N.  Y.)  497,  500,  note;  Schmidt  v.  Blood,  9  Wend.  (N.  Y.) 
2GS;  Jackson  v.  Sacramento  Val.  R.  Co.,  23  Cal.  2G9;  Clark  v.  Spence,  10 
Watts  (Pa.)  335;  Smith  v.  First  Nat.  Bank  in  Westfield,  99  Mass.  OOo;  Gay 
V.  Bates,  99  Mass.  263;  Lamb  v.  Westeni  Railroad  Corp.,  7  Allen  (Masa.)  08; 
Willett  V.  Rich,  142  Mass.  356,  7  N.  E.  776;  Runyan  v.  Caldwell,  7  Huoipb. 
(Tenn.)  134;  Browne  v.  Johnson,  29  Tex.  40;  Cross  v.  Brown,  41  N.  H.  283, 
289;  Denton  v.  Chicago,  R.  I.  &  P.  R.  Co.,  52  Iowa,  161,  2  N.  W.  1093; 
Finucane  v.  Small,  1  Esp.  315;  Clay  v.  Willan,  1  H.  Bl.  298;  Gilbart  v.  Dale, 
5  Adol.  &  B.  548. 

275  ciaflln  V.  Meyer,  75  N.  Y.  260;  Coleman  v.  Livingston,  36  N.  Y.  Sui)er. 
Ct.  32;  Id.,  45  How.  Prac.  (N.  Y.)  483;  Golden  v.  Romer,  20  Hun  (N.  Y.)  438; 
Wilson  V.  Southern  Pac.  R.  Co.,  62  Cal.  164;  Boles  v.  Hartford  &  N.  H.  R. 
Co..  37  Conn.  272;  Reed  v.  Crowe,  13  Daly  (N.  Y.)  164;  Cox  v.  O'Ulley,  4 
Ind.  368;  Clark  v.  Spence,  10  Watts  (Pa.)  335;  Buniell  v.  New  York  Cent. 
R.  Co.,  45  N.  Y.  184;  Fairfax  v.  New  York  Cent.  &  H.  R.  R.  Co.,  67  N.  Y.  11; 
Schwerin  v.  McKie,  51  N.  Y.  180.  The  proof  that  the  goods  have  been  lost 
or  stolen  must  be  clear,  in  order  to  overcome  plaintift's  prima  facie  case. 
Williamson  v.  New  York,  N.  H.  &  H.  R.  Co.  (Super.  Ct.  N.  Y.)  4  N.  Y.  Supp. 
834;  Arent  v.  Squire,  1  Daly  (N.  Y.)  347;  Clark  v.  Spence,  10  Watts  (Pa.) 
335;  Leoncini  v.  Post,  13  N.  Y.  Supp.  825.  But  when  such  fact  Is  satisfac- 
torily established,  plaintiff  must  prove  that  the  loss  was  caused  by  de- 
fendant's negligence,  in  order  to  recover.  Lancaster  Mills  v.  Merchantn' 
Cotton-Press  Co.,  89  Tenn.  1,  14  S.  W.  317;  Coleman  v.  Livingston,  45  How. 
Prac.  483;  Babcock  v.  Murphy,  20  La.  Ann.  399;  McCullom  v.  Porter,  17  La. 
Ann.  89.  A  warehouseman  who  fails  to  deliver  property  bailed  to  him  Is 
bound  to  show  that  the  loss  occurred  without  a  want  of  ordinary  care  and 
diligence  on  his  part,  but  not  necessarily  the  preci.se  manner  in  which  tbn 
loss  occuiTed.  Lichtenhein  v.  Boston  &  P.  R.  Co.,  11  Cush.  (Mass.)  70. 
Bailee  Is  presumed  to  have  been  negligent,  and  burden  of  proof  rests  upon 
him  of  showing  exercise  of  such  care  as  was  required  by  nature  of  the  bail- 
ment, in  case  of  compensated  as  well  as  In  gratuitous  Imilnients.  whore 
bailor  shows,  in  action  against  bailee  to  recover  damages  for  Injury  to  or 
loss  of  goods  bailed,  that  goods  were  placed  in  hands  of  bailee  In  pood  condi- 
tion, and  that  they  were  returned  in  damaged  state  or  not  at  all.  Oumia» 
V.  Wood,  44  111.  416, 
LAWBAIliM. — 16 


242  BAILMENTS    FOB   MUTUAL    BENEFIT HIRING.  [Ch.  5 

throughout,  but  the  weight  of  evidence  may  shift.*^®  In  Claflin  v. 
Meyer  ^■'^  it  was  said:  "It  will  be  seen,  as  the  result  of  these  au- 
thorities,  that  the  burden  is  ordinarily  upon  the  plaintiff  alleging 
negligence  to  prove  it,  against  a  warehouseman  who  accounts  for 
his  failure  to  deliver  by  showing  a  destruction  or  loss  from  fire  or 
theft.  It  is  not,  of  course,  intended  to  hold  that  a  warehouseman 
refusing  to  deliver  goods  can  impose  any  necessity  of  proof  upon  the 
owner,  by  merely  alleging  as  an  excuse  that  they  have  been  stolen 
or  burned.  These  facts  must  appear  or  be  proved  with  reasonable 
certainty.  Nor  do  we  concur  in  the  view  that  there  is,  in  these 
cases,  any  real  'shifting'  of  the  burden  of  proof.  The  warehouse- 
man, in  the  absence  of  bad  faith,  is  only  liable  for  negligence.  The 
plaintiff  must,  in  all  cases,  suing  him  for  the  loss  of  goods,  allege 
negligence  and  prove  negligence.  This  burden  is  never  shifted 
from  him.  If  he  proves  the  demand  upon  the  warehouseman,  and 
his  refusal  to  deliver,  these  facts,  unexplained,  are  treated  by  the 
courts  as  prima  facie  evidence  of  negligence;  but  if,  either  in  the 
course  of  his  proof  or  that  of  the  defendant,  it  appears  that  the 
goods  have  been  lost  by  theft,  the  evidence  must  show  that  the  loss 
arose  from  the  negligence  of  the  warehouseman."  "The  doctrine 
deducible  from  these  authorities  seems  to  be  this:  A  bailor  seek- 
ing to  recover  from  a  warehouseman  for  the  nondelivery  of  goods, 
or  an  injury  thereto,  must  prove  negligence.  When  he  shows  that 
the  goods  were  not  delivered  on  demand,  or  were  delivered  in  a 
damaged  condition,  he  has  made  a  prima  facie  case.  If  the  defend- 
ant accounts  for  the  nondelivery  or  injury  by  showing  that  the 
goods  were  stolen,  or  were  lost  or  damaged  by  fire,  or  in  any  other 
manner  consistent  with  the  exercise  of  ordinary  care  on  his  part, 
the  plaintiff's  prima  facie  case  is  overcome,  and  he  must  prove  posi- 
tive negligence  occasioning  the  loss."  "^ 
Same — Duty  to  Redeliver  Thing  Bailed. 

A  bailee  for  safe-keeping  must  return  the  thing  bailed  to  the 
bailor,  or  according  to  his  directions.     He  cannot  require  proof  that 

2T6  The  burden  of  proof  never  shifts.  Willett  v.  Rich,  142  Mass.  356, 
360,  7  N.  B.  776. 

2  77  Claflin  V.  Meyer,  75  N.  Y.  260. 

S7  8  Editor's  note  to  Schmidt  v.  Blood,  24  Am.  Dec.  143,  153.  The  cases 
are  very  conflicting. 


§    45]  RIGHTS  AND  LIABILITIES  OF  PARTIES SPECIFIC  HAILMENT.-^.       243 

the  bailor  is  also  the  owner.""  Delivery  to  a  third  peraoii  hy  jnia- 
take  or  negligence  makes  a  warehouseman  liable  for  converBioii. ' * " 
It  is  the  custom  of  warehousemen,  on  receiving  goods  for  storage,  to 
give  a  receipt  or  delivery  order,  upon  presentation  of  which  the 
goods  are  to  be  surrendered  to  the  bailor  or  his  order.  "The  indorse 
ment  and  delivery  of  the  receipt  of  the  warehouseman,  in  the  coui-hc 
of  trade,  passes  the  title  and  right  of  possession  of  the  property  to 
the  party  to  whom  it  is  so  indorsed  and  delivered."^*'  A  wan* 
house  receipt,  in  the  absence  of  statute,  is  not  ncirotiable.  Ware- 
housemen who  have  given  receipts  for  grain  stored  with  them  for 
hire  cannot  be  heard  to  dispute  the  title  of  an  indorsee  who  has 
loaned  money  in  good  faith  upon  the  receipts,  or  aver  that  they  did 
not  receive  the  property  on  the  terms  specified.^ ^^  When  a  ware- 
house receipt  provides  that  the  warehouseman  need  not  deliver  the 
property,  except  on  the  written  order  of  the  bailor,  the  bailee  ran 
not  justify  a  refusal  to  deliver  to  a  person  succeeding  to  the  own- 
ership on  the  ground  of  nonpresentation  of  a  written  order  of  such 
former  owner,  where  the  claimant  can  otherwise  prove  his_title.'*' 

Same —  Tllien  lAnbility  Begins  and  Ends. 

One  of  the  most  important  questions  which  arise  in  respect  to 
warehousemen  is  to  ascertain  when  their  liability  as  such  begins 
and  ends,  or,  in  other  words,  when  their  dutv  of  custody  commences 
and  finishes.  The  question  is  of  especial  importance  and  nicety 
where  the  bailee  sustains  the  successive  relation  of  carrier  and  ware- 
houseman to  the  goods  bailed.  As  carriers  and  warehousemen 
are  subject  to  very  different  liabilities,  the  question  is  of  great  prac- 
tical importance.      This  branch  of  the  subject  will  be  fully  discussed 

279  McCafferty  v.   Brady   (Pa.   Sup.)  9  Atl.  37. 

280  Licbtenhein  v.  Boston  &  P.  R.  Co.,  11  Cush.  (Mass.)  70;  B.atik  of 
Oswego  V.  Doyle,  91  N.  Y.  32.  A  warehouseman  who  is  the  actor,  mid  ha.s 
delivered  to  the  wrong  person  through  mistake  or  negligence,  is  lialjle  in 
trover.  Alabama  &  T.  R.  R.  Co.  v.  Kidd,  35  Ala.  209;  WlUard  v.  Bridge. 
4  Barb.  (N.  Y.)  361;  Devereux  v.  Barclay,  2  Barn.  &  Aid.  702;  Jefferaonvllle 
R.  Co.  V.  White,  6  Bush,  251;    Collins  v.  Bums,  G3  N.  Y.  1. 

2  81  Harris  v.  Bradley,  2  Dill.  (U.  S.)  284. 

282Babcock  v.   People's  Sav.   Bank,  118  Ind.  212,  20  N.   E.  732.     But  se« 
Hudmon  v.  Du  Hose,  85  Ala.  4-10;  5  South.  162. 
283  Winner  v.  Morrell,  40  N.  Y.  Super.  Ct.  222. 


244  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   6 

in  the  chapter  on  Carriers.^ ^*  In  general,  the  liability  as  wa.re- 
houseman  begins  only  when  the  goods  have  been  delivered  on  his 
premises,  and  expressly  or  impliedly  received  by_him.''^°  It  has 
been  held  that  as  soon  as  the  goods  arrive,  and  the  crane  of  the 
warehouse  is  applied  to  raise  them  into  the  warehouse,  the  liability 
of  the  warehouseman  commenced.^**  If  a  warehouseman  consents 
to  take  charge  of  goods  before  they  reach  the  warehouse7hp  ia  lia- 
ble from  that  moment.^ ^^  The  liability  of  a  warehouseman  ends 
with  his  delivery  of  the  property  to  the  person  rightfully  entitled 
to  it.  So,  where  wheat  is  discharged  into  a  vessel  through  a  pipe 
controlled  by  the  vessel,  the  warehouseman's  liability  ends  with  the 
discharge  into  the  pipe.^^*  Where  the  property  is  taken  from  his 
possession  without  fault  on  his  part,  or  lost  by  means  for  which  he 
is  not  responsible,  liability  ceases.^" 

Same — Confusion  of  Goods. 

If  a  party  having  charge  of  the  property  of  others  so  confounds  it 
with  his  own  that  the  line  of  distinction  cannot  be  traced,  all  the 
inconvenience  of  the  confusion  is  thrown  upon  the  party  who  pro- 
duces it.  Where,  however,  the  owners  consent  to  have  their  wheat 
mixed  in  a  common  mass,  each  remains  the  owner  of  his  share  in 
the  common  stock.  If  the  wheat  is  delivered  in  pursuance  of  a  con- 
tract for  bailment,  the  mere  fact  that  it  is  mixed  with  a  mass  of  like 
quality,  with  the  knowledge  of  the  depositor  or  bailor,  does  not  con- 

2  84  See  post,  p.  301. 

2  85Rodgers  v.  Stophel,  82  Pa.  St.  Ill;  Blin  v.  Mayo,  10  Vt.  58.  See,  also, 
J'itsworth  V.  Winnegar,  51  Barb.  148.  A  waretiouseman  cannot  have  posses- 
sion of  another's  property,  with  its  accompanying  duties  and  responsibilities, 
forced  upon  him  against  his  will.  Delaware,  L.  &,  W.  R.  Co.  v.  Central  Stock- 
yard Co.,  45  N.  J.  Eq.  50,  17  Atl.  146.  A  warehouseman  is  responsible  for  the 
safety  and  security  of  goods  after  delivery  in  the  warehouse  on  Sunday,  the 
safe-lieeping  of  goods  being  a  work  of  necessity.  Powhatan  Steamboat  Co. 
V.  Appomattox  R.  Co.,  24  How.  247. 

288  Thomas  v.  Day,  4  Esp.  262.  See,  also,  De  Mott  v.  Lara  way,  14  Wend. 
225;  llaudleson  v.  Murray.  8  Adol.  &  E.  109;  Merritt  v.  Old  Colony  &  N.  R. 
Co.,  11  Allen,  80;   Jeffersonville  K.  Co.  v.  White,  6  Push  (Ky.)  251,  252. 

2  8T  Ducker  v.  Bamett.  5  Mo.  G5. 

268  The  R.  G.  Winslow,  4  Biss.  13,  Fed.  Cas.  No.  11,736. 

2  89  Sessions  v.  Western  R.  Corp.,  16  Gray,  132.  Cf.  Smith  v.  Frost,  51  Ga. 
S36. 


§    45]  KIGHTS  AND  LIABILITIES  OF  PARTIKS SPECIFIC  BAILMK NT3.       24.' 

vert  that  into  a  sale  which  was  originallj  a  bailment;  and  the  ballon 
of  the  whole  can,  of  course,  have  no  greater  control  of  the  mas* 
than  if  the  share  of  each  were  kept  separate.'""     If  the  coinmingled 
mass  has  been  delivered  on  simple  storage,  each  ia  entitled,  on  de- 
mand, to  receive  his  share;    if  for  manufacture  into  (lour,  to  his 
proper  proportion  of  the  product."^      It  makes  no  difference  that 
the  bailee  had,  in  like  manner,  contributed  to  the  mass  of  his  own 
wheat;    for,  although  the  absolute  owner  of  his  own  share,  he  still 
stands  as  a  bailee  to  the  others,  and  he  cannot  abstract  more  thao 
that  share  from  the  common  stock  without  a  breach  of  the  bail 
ment,  which  will  subject  him  not  only  to  a  civil  suit,  but  possibly, 
also,  to  a  criminal  prosecution.'"^      But  where  the  uuderslanding      // 
of  the  parties  was  that  the  person  receiving  the  grain  niiiTJ'^  ^-'^'" //^ 
from  it,  or  from  the  flour,  at  his  pleasure,  and  appropriate  the  '•^jhiu^ 
to  his  own  use,  on  the  condition  of  his  propiyinp^  nih^r  whp;if  tn 
supply  its  place,  the  dominion  over  the  property  passes  to  the  de- 
positarv.  and  the  transaction  is  a  sale,  and  not  a  bailment."' 


290  Bretz  V.  Diehl,  117  Pa.  St.  5S9,  11  Atl.  893. 

281  Chase  v.  Washburn,  1  Ohio  St.  244.    See,  also,  Hutchinson  v.  Com..  82 
Pa.  St.  472;    Bretz  v.  Diehl,  117  Pa.  St.  589,  11  Atl.  898. 

2  92  Hutchinson  v.  Com.,  82  Pa.  St.  472. 

293  Bretz  V.  Diehl,  117  Pa.  St.  589,  11  Atl.  893.  To  the  same  effect  are 
Schindler  v.  Westover,  99  lud.  395;  Richardson  v.  Olmstead.  74  111.  213; 
Bailey  v.  Bensley,  87  111.  556;  and  Johnston  v.  Browne,  37  Iowa.  200.  In 
Lyon  v.  Lenou,  106  Ind.  567,  7  N.  E.  oil,  the  distinction  Is  thus  stated:  "If 
the  dealer  has  the  right,  at  his  pleasure,  either  to  ship  and  sell  the  nanu- 
on  his  own  account,  and  pay  the  market  price  on  demand,  or  retain  and 
redeliver  the  wheat,  or  other  wheat  in  the  place  of  it.  the  transaction  Is  a 
sale.  It  is  only  when  the  bailor  retains  the  right  from  the  beginning  to 
elect  whether  he  will  demand  tlie  redeiivery  of  his  pi-oi)i'rty.  or  other  of  like 
quality  and  grade,  that  the  contract  will  be  construed  to  be  one  of  bailment. 
If  he  surrender  to  the  other  the  right  of  election,  it  will  be  considered  a  sale, 
with  an  option  on  the  part  of  the  purchaser  to  pay  either  In  money  or  prop- 
erty, as  stipulated.  The  distinction  is.  can  the  depositor,  bv  '''q  rifPtn"'*, 
compel  a  delivery  o^  wheat,  whether  tlie  dealer  is  willing  or  not?  If  lie  can, 
the  transaction  Is  a  bailment;  if  the  dealer  has  \h(^  nntion  to  pav  for  IL  In 
money  or  other  wheat.  It  is  a  sale/'  See,  also,  Fishback  v.  Van  Dusen.  33 
Minn.  Ill,  22  N.  W.  244;  Chase  v.  Washburn,  1  Ohio  St.  244.  If  the  trans- 
actlon  constitutes  a  bailment,  it  is  converted  into  a  sale  whenever  the  l)ailoe 
disposes  of  the  grain.  Nelson  v.  Brown,  44  Iowa,  455.  The  delivery  of  gralc 
for  storage  In  a  wai'ehouse  is  a  bailment,  under  the  Minnesota  statute  (0«"> 


246  BAILMENTS    FOR    MUTUAL    BENEFIT HIRINQ.  [Ch.    5 

Forwarding  Merchants. 

"There  is  a  class  of  persons,  well  known  In  this  country,  who  are 
called  'forwarding  merchants,'  and  who  usually  combine  in  their 
business  the  double  character  of  warehousemen  and  agents,  for  a 
compensation,  to  forward  goods  to  their  destination.  This  class  of 
persons  is  especially  employed  upon  our  canals  and  railroads,  and 
in  our  coasting  navigation  by  steam  vessels  and  other  packets.  The 
law  is  that  persons  so  employed,  if  they  have  no  concern  in  the  vehi- 
cle by  which  the  goods  are  sent,  and  have  no  interest  in  the  freight, 
are  not  liable  as  common  carriers,  but  are,  of  course,  liable  like 
warehousemen  and  common  agents;  that  is.  for  ordinary  diligence, 
and  for  that  only."  ^^*      Forwarding  merchants  have  been  largely 

St.  1878,  c.  124,  §  13;  Gen.  St.  1894,  §  7645),  and  the  title  thereto  remains  in 
the  depositor,  who  is  deemed  to  be  the  owner  of  grain  in  the  warehouse  to 
the  amount  of  his  deposit,  although  the  identical  grain  that  he  deposited 
may  have  been  removed,  and  other  grain  of  like  kind  and  quality  substituted 
in  its  stead.  Hall  v.  Pillsbury,  43  Minn.  33,  44  N.  W.  673.  In  many  states 
it  is  held,  even  in  the  absence  of  statute,  that  when  a  warehouseman  re- 
ceives grain  to  be  stored,  and  with  the  owner's  assent  places  it  in  a  common 
bin  with  his  own  grain  and  that  received  from  other  depositors,  and  sella 
therefrom,  retaining  always  suthcient  to  supply  each  owner,  the  contract 
remains  one  of  bailment.  Botteuberg  v.  Nixon,  97  Ind.  106;  Sexton  v. 
Graham,  53  Iowa,  181,  4  N.  W.  1090;  Nelson  v.  Brown,  53  Iowa,  535,  5  N.  W. 
719;  Irons  v.  Kentner,  51  Iowa,  88,  50  N.  W.  73;  Ledyard  v.  Hibbard,  48 
Mich.  421,  12  N.  W.  637.  See,  also,  Morningstar  v.  Cunningham,  110  Ind. 
328,  336,  11  N.  E.  593.  The  depositors,  in  such  case,  are  tenants  in  common 
of  the  entire  amount  in  store,  though  its  identity  has  been  completely 
changed  by  continued  additions  and  subtractions.  Sexton  v.  Graham,  53 
Iowa,  181,  4  N.  W.  1090;  Arthur  v.  Chicago,  R.  I.  &  P.  R.  Co.,  61  Iowa,  648, 
17  N.  W.  24;  Dole  v.  Olmstead,  3G  111.  150;  Andrews  v.  Richmond,  34  Hun, 
20;  Nelson  v.  Brown,  53  Iowa,  535,  5  N.  W.  719.  See  extensive  note  in  6 
Am.  Law  Rev.  p.  450;   also,  24  Am.  Dec.  143,  145. 

294  Ang.  Carr.  §  75.  And  see  Schouler,  Bailm.  (2d  Ed.)  §  351;  Story,  Bailm. 
§§  444,  502;  2  Kent,  Comm.  591.  592;  Piatt  v.  Hibbard,  7  Cow."  cN.  Y.)  497; 
Maybin  v.  South  Carolina  R.  Co.,  8  Rich.  (S.  C.)  240;  Northern  R.  Co.  v. 
Fitchburg  R.  Co.,  6  Allen  (Mass.)  254;  Stannard  v.  Prince,  64  N.  Y.  300;  Rob- 
erts V.  Turner,  12  Johns.  (N.  Y.)  232;  Brown  v.  Denison,  2  Wend.  (N.  Y.) 
693;  Bush  v.  Miller,  13  Barb.  (N.  Y.)  481,  488;  Holtzclaw  v.  Duff,  27  Mo.  392. 
Ordinary  diligence  in  forwarding  by  responsible  persons  discharges  the  for- 
warding merchant  from  liability.  Brown  v.  Denison,  2  Wend.  (N.  Y.)  593. 
Where  the  contract  Is  either  expressly  or  impliedly  for  the  transportation  of 


§45]  RIGHTS  AND  LIABILITIES  OF  PARTIES SPECIFIC  BAILMENTS.       217 

superseded  by  express  companies,  who  combine  their  functions  with 
those  of  a  common  carrier.  It  is  often  a  matter  of  extreme  diffi- 
culty and  importance  to  determine  whether  a  bailee  is  acting  in  the 
capacity  of  a  forwarder  or  a  carrier.  This  question  will  be  dis- 
cussed in  the  chapter  on  Carriers.^"' 
Wharfingers. 

A  wharfinger  is  one  who  owns  or  keeps  a  wharf  for  the  purpose 
of  receiving  and  shipping  merchandise  to  or  from  it  for  hire."*  The 
liabilities  of  a  whai'finger  are  not  in  any  respect  distinguishable 
from  those  of  warehousemen.  He  is  responsible  only  for  reason- 
able  and  ordinary  care  in  securing  the  property  from  loss."^  At 
what  time  the  responsibility  of  a  wharfinger  begins  and  ends,  de- 
pends upon  the  question  when  he  acquires,  and  when  he  ceases  to 
have,  the  custody  of  the  goods  in  that  capacity.  His  responsibility 
begins  whenjhe j£oods  are  delivered  on  the  wharf,  and  he  has,^ either 
expressly  or  by^^  implication,  received  thfixn.'"^  This  is  generally 
governed  by  the  usages  of  the  particular  trade  or  business.  Where 
goods  are  in  the  wharfinger's  possession,  to  be  sent  on  board  of  a 
vessel  for  a  voyage,  as  soon  as  he  delivers  the  possession  and  care 
of  them  to  the  proper  officers  of  the  vessel,  although  they  are  not 
actually  removed,  he  is,  by  the  usages  of  trade,  deemed  exonerated 
from  any  further  responsibility,  and  the  goods  ai'e  deemed  to  be  in 
the  constructive  possession  of  the  officers  of  the  ship.=^^*  On  the 
other  hand,  a  mere  delivery  of  goods  at  a  wharf  is  not  necessarily 
a  delivery  of  them  to  the  wharfinger;  but  there  must  be  some  act 
or  assent  on  his  part,  or  on  that  of  his  servants  or  agents,  to  the 
custody  thereof,  before  he  will  be  deemed  to  have  assumed  the  char- 

the  goods,  the  bailee's  liability  Is  that  of  a  common  carrier,  though  he  is  not 
in  fact  interested  in  the  vessel  in  which  the  goods  are  curried.  Teall  v. 
Sears,  9  Barb.  317;   Ladue  v.  Griffith,  25  N.  Y.  364. 

28  5  Post,  p.  301. 

296  Rodgers  v.  Stophel,  32  Pa.  St.  111. 

297  Id. 

29  8  Rodgers  v.  Stophel,  32  Pa.  St.  Ill;   Blin  v.  Mayo,  10  Vt.  RO. 

299  A  wharfinger  who  has  illegally  detained  goods,  which  the  owner  haa 
since  agreed  to  accept  and  send  for,  is  not  liable  for  their  destruction  by  Are. 
without  his  fault,  after  the  owner  has  had  a  reasonable  time  to  remove 
them.  Carms  v.  Nichols,  10  Gray,  3G9.  See,  also,  Merritt  v.  Old  Colony  & 
N.  R.  Co.,  11  Allen,  80,  83;  Gass  v.  New  York,  P.  &  B.  R.  Co.,  O'J  Mass.  L'27. 


248  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.    5 

acter  of  custodian.^""  A  wharfinger,  like  other  depositaries  for  hire, 
has  a  lien  on  the  goods  for  his  wharfage.'"*  But,  in  case  of  a  sale 
of  the  thing  by  the  owner,  the  lien  attaches  only  to  the  amount  of 
the  debt  existing  at  the  time  when  he  has  notice  of  the  sale,  and  not 
for  any  after-accruing  debt.""' 
Safe-Deposit  Companies. 

It  is  an  interesting  question,  and  one  upon  which  the  reports 
throw  little  light,  to  determine  whether  safe-deposit  companies  are 
liable  as  bailees.  It  seems  to  have  been  assumed,  without  much 
consideration,  that  such  companies  are  bailees  for  hired  custody.^"^ 
Thus,  in  a  recent  New  York  case,'"*  a  safe-deposit  company  was  said 
to  be  a  bailee  or  depositary  for  hire,  and  the  whole  opinion  proceeds 
upon  that  theory.  In  that  case  a  safe-deposit  company  was  held 
liable  for  permitting  property  to  be  removed  from  a  vault  rented  by 
it  to  plaintiff,  under  color  of  legal  process,  which  in  fact  did  not  au- 
thorize the  officers  to  seize  the  property.  It  was  not  necessary,  how- 
ever, to  a  decision  of  that  case,  to  pronounce  the  defendant  a  bailee, 
as  it  was  clearly  liable  for  breach  of  its  contract  undertaking.  So, 
where  a  safe-deposit  company  agreed  to  'Tieep  a  constant  and  ade- 
quate guard  over  and  upon  the  burglar-proof  safe,"  it  was  held  that 
the  mere  disappearance  of  plaintiff's  bonds  from  the  safe  was  prima 
facie  evidence  of  negligence.^ °°  The  decision  in  each  of  the  fore- 
going cases  was  doubtless  correct,  but  whether  the  transactions  in- 
volved were  bailments,  or  not,  is  another  question.  In  the  ordinary 
course  of  their  business,  safe-deposit  companies  rent  safes  or  boxes 
in  their  vaults  to  depositors,  engaging  to  maintain  a  guard  over  the 
vaults,  but  retaining  no  right  of  access  in  themselves.     It  does  not 

800  Buckman  v.  Levi,  3  Camp.  414;  Gibson  v.  Inglis,  4  Camp.  72;  Packard 
V.  Getman,  6  Cow.  757. 

«oi  Johnson  v.  Tlie  McDonougli,  Gilp.  101,  Fed.  Cas.  No.  7,395;  Ex  parte 
Lewis,  2  Gall.  483,  Fed.  Cas.  No.  8,310;  Vaylor  v.  Mangles,  1  Esp.  109; 
Spears  v.  Hartly,  3  Esp.  81;  Holderness  v.  Collinson,  7  Barn.  &  C  212.  See, 
generally,  Brookman  v.  Hamill,  43  N.  Y.  554;  Lenckhart  v.  Cooper,  3  Bing. 
(N.  C.)  99.    See,  also,  ante,  p.  212. 

802  Barry  v.  Longmore,  4  Perry  &  D.  344.  And  see  Sage  v.  Gittner,  11 
Barb.  120. 

303  Schouler,  Bailm.  (2d  Ed.)  §§  96,  103;    Lawson,  Bailm.  §  44. 

804  Roberts  v.  Stuyvesant  Safe-Deposit  Co.,  123  N.  Y.  57,  25  N.  B.  294. 

«0  6  Safe-Deposit  Co.  of  Pittsburgh  v.  Pollock,  85  Pa.  St.  391. 


§    45]  RIGHTS  AND  LIABILITIES  OF  PAUTIKS SPECIFIC  BAILMENTS.       2  JD 

receive  deposits  personally,  as  in  tlio  case  of  ypecijil  hanU  dcpusiiH, 
but,  on  the  contrary,  the  depositor  himself  phices  his  property  in 
his  safe,  and  removes  it,  at  his  pleasure;  the  ((unpany  being  ipno 
liint  of  what,  if  any,  property  is  in  the  box  or  safe.  Can  it  be^ahl. 
i  iiany  true  sense,  that  the  company  is  in  possession  of  the  property , 
or  that  there  has  been  a  delivery?  If  there  is  no  possession,  and  no 
delivery,  there  is  no_bailllient.  In  Gregg  v.  Ililson  •°"  it  api»»'ared 
that  defendant  had  rented  from  a  safe-deposit  company  a  ct-rtain 
closet  or  safe  in  its  vault,  which  was  locked,  and  of  which  he  re 
tained  the  key.  The  contract  by  which  the  safe  was  rented  ex- 
pressly provided  that  onl}'  in  case  of  refusal  to  surrender  the  key.s 
and  give  up  possession  to  the  company  at  the  expiration  of  the  lease, 
on  15  days'  notice,  was  the  company  authorized  to  break  open  th. 
safe.  The  company  contracted  to  use  reasonable  diligence  that  no 
unauthorized  person  should  be  admitted  to  any  rented  safe,  but  bi'- 
vond  that  the  company  was  not  to  be  responsible  for  the  contents 
of  any  safe  rented  from  it,  except  by  special  agreement  in  writing. 
A  writ  of  garnishment  was  served  on  IIk:'  safe-di'p;)sit  company,  and 
the  company  was  ruled  to  show  cause  why  it  should  not  be  com 
pelled  to  open  the  safe  and  file  an  inventory  of  the  contents.  Tlic 
court  said:  'T  think  it  very  clear  that  these  rented  safes  cannot  be 
the  subject  of  attachment,  under  the  Act  of  June  IG,  1S3G,  §  35 
(Pamph.  Laws,  767).  They  are  not  'a  debt  due  to  the  defendant,  or 
a  deposit  of  money  made  by  him,  or  goods  or  chattels  pawned, 
l)ledged  or  demised.'  The  contents  of  the  safe  are  in  actual  pos 
session  of  the  renter  of  the  safe.  They  have  not  been  deposited 
with  or  demised  to  the  company.  I  am  asked  to  make  an  order 
upon  the  company  to  open  the  safe  and  file  an  inventory  of  its  con 
tents.  This,  I  am  of  opinion,  1  have  no  power  to  do."  In  Peers  v. 
Sampson,3°^  where  a  room  was  hired  in  which  to  store  goods,  the 
key  being  kept  by  the  hirer,  it  was  held  that  the  owner  of  the  house 
was  not  liable  for  a  theft  of  the  goods  by  his  servant,  on  the  ground 
that  the  goods  had  never  been  delivered  to  him  for  safekeeping.*'^* 

806  8  Phila.  91.     See,  also,  U.  S.  v.  Graff,  G7  Barb.  304. 

807  4  Dowl.  &  R.  636.     »ee,  also,  East  India  Co.  v.  Pullen,  1  Strange.  GOO. 

808  In  Jones  v.  Morgan.  90  N.  Y.  4,  it  appeared  that  plaiutiff  had  reutod  a 
room  in  a  storehouse  from  defendant,  who  contracted  to  f;iiard  it.  Tlie 
door  to  the  room  had  two  locks,  the  liey  of  one  of  which  was  liept  by  plain- 


250  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   5 

These  cases  are  undoubtedly  sound  in  principle.     The  similarity  be- 
tween safe-deposit  companies  and  bailees  lies  in  the  fact  that  the 
former,  by  express  contract,  assume  ceri:ain  duties,  which,  in  the 
absence  of  express  contract,  are  ijnposed  upon  the  latter  by  law. 
Agisters. 

An  agister  is  one  who  takes  cattle  of  another  into  his  own 
grounds,  to  be  fed,  for  a  consideration  to  be  paid  by  the  owner.^"^ 
The  liabilities  of  agisters  do  not,  in  the  main,  differ  from  those  of 
other  bailees  for  hire.'^^  As  has  been  seen,  they  have  no  lien  at 
common  law  for  their  charges,  though  one  is  commonly  given  them 
now  by  statute,^ ^^  and  it  was  always  competent  for  the  parties  to 
stipulate  for  a  lien.^^^  Agisters  do  not  insure  the  safety  of  the 
animals  intrusted  to  them,  but  are  merely  liable  for  ordinary  negli- 
gence.*^' They  must  keep  their  grounds  properly  inclosed.'^*  So 
it  has  been  held  negligence  for  an  agister  or  his  servants  to  leave 
open  his  gates,  and,  if  the  cattle  stray  away  or  are  stolen,  he  will 
be  liable  for  the  loss.'^"^  It  is  negligence  to  turn  a  colt  into  a  field 
accessible  to  a  bull,  and  if  the  colt  is  gored  the  bailee  will  be  re- 
sponsible, although  unaware  of  the  bull's  vicious  disposition.^^** 

tiff.  The  property  was  stolen  from  the  room,  and,  in  an  action  for  damages, 
plaintiff  contended  that  the  defendant  was  a  bailee,  while  the  defendant 
claimed  that  the  relation  was  that  of  landlord  and  tenant.  The  court  said 
that  the  relation  was  one  of  bailment,  though  it  was  not  necessary  to  a  deci- 
sion of  the  case.  The  case  was  liliened  to  that  of  one  who  hires  a  box  in  a 
safe-deposit  company.  The  defendant  was  held  liable  on  his  contract,  irre- 
spective of  whether  it  created  a  bailment. 

30  8  Bass  V.  Pierce,  16  Barb.  595. 

310  Story,  Bailm.  §  443;    Jones,  Bailm.  91,  92. 

811  See  ante,  p.  222. 

312  McCoy  V.  Hock,  37  Iowa,  436,  437;  Whitlock  v.  Heard,  13  Ala.  776; 
Goodrich  v.  Willard,  7  Gray,  183,  184.  And  see  Miller  v.  Marston,  35  Me. 
153. 

313  Broadwater  v.  Blot,  Holt,  547;  Smith  v.  Cook,  1  Q.  B.  Div.  79;  Searle 
V.  Laverick,  L.  R.  9  Q.  B.  122,  130;  McCarthy  v.  Wolfe,  40  Mo.  520;  Holty 
V.  Markel,  44  111.  225;  Eastman  v.  Patterson,  38  Vt.  146;  Maynard  v.  Buck, 
100  Mass.  40. 

814  Cecil  V.  Preuch,  4  Mart.  (N.  S.)  256. 

316  Story,  Bailm.  §  443;    Jones,  Bailm.  92;    Swann  v.  Brown,  6  Jones  (N. 
C.)  150. 
318  Smith  V.  Cook,  1  Q.  B.  Div.  79. 


§    45]  RIGHTS  AND  LIABILITIES  OP  PARTIES SPEaPIC  BAII,MKNT8.       2ol 

The  general  duty  of  an  agister  is  to  keep  the  cattle  with  the  same 
care  that  a  man  of  ordinary  prudence  would  use  in  the  performance 
of  the  same  duty  towards  his  own  property-.  If  skill  is  required  for 
the  proper  care  of  the  animals,  the  agister  must  possess  a  reason- 
able degree  of  skill. 

Factors  and  Other  Bailiffs. 

"These  agents  are  generally  held  liable  only  for  a  reasonable  ex- 
ercise of  skill,  and  for  ordinary  care  and  diligence  in  their  voca- 
tion."^ They  are  consequently  not  liable  for  any  loss  by  theft, 
robbery,  firg^  or  other  accident^  unless  it  is  connected  with  their 
own  negligence."^  Factors  have  generally  a  right  to  sell  good^s. 
but  they  have  no  right  to  pawnthem,  except  jo  r  an  amount  nui 
exceeding  their  lien.°^^  They  are  at  liberty  to  act  according  to  the 
general  usages  of  trade,  and  to  give  credit  on  sales,  wherever  that  Is 
customary.^^"  They  are  bound,  however,  in  all  cases,  to  follow  the 
lawful  instructions  of  their  principals.^"  If  they  act  with  reason 
able  diligence  and  good  faith,  they  are  protected.  In  cases  of  unfore 
seen  emergency  and  necessity,  they  may  even  act  contrary  to  the  gen 
eral  tenor  of  the  instructions  of  their  principal,  if  those  instructions 
are  manifestly  applicable  to  ordinary  circumstances  only."*  Bui 
good  faith  alone  is  not  suflScient.  There  must  be  reasonable  skill, 
and  a  careful  obedience  to  orders,  on  their  part.  If  there  is  any  loss 
occasioned  by  their  negligence  or  mistake  or  inadvertence,  which 
might  fairly  have  been  guarded  against  by  ordinary  diligence,  they 
will  be  held  responsible  therefor;  and  a  fortiori  they  will  be  held  re 
sponsible  where  they  are  guilty  of  any  misfeasance."''  The  right, 
duties,  and  responsibilities  of  factors,  however,  more  properly  belong 
to  a  treatise  on  agency.'*^* 

8»T  Jones,  Bailm.  98;    Story,  Ag.  §§  182-186. 

818  Jones,  Bailm.  98;   Vera  v.  Smith,  1  Veut.  121;   Ctoggs  v,  Bernard,  2  Ld. 
Raym.  909,  918. 
8"  StoiT,  Ag.  §§  78,  113,  225. 

820  StoiT,  Ag.  §§  60,  110,  199,  209. 

821  Streeter  v.  Horlock,  1  Blng.  34;    Story,  Ag.  85  192,  193,  193. 

822  story.  Ag.  §§  85,  118,  141,  193. 

828  Ulmer  v.  Ulmer,  2  Nott  &  McC.  489;    Story.  Ag.  §S  1S2-1S.J,  ISS. 
824  ck)m.    Dig.    "Merchant,"   B;    Bac.  Abr.   "Merchant  and   Merchandlao"; 
Story,  Ag.  §§  33,  110-113. 


252  BAILMENTS    FOR    MUTUAL    BENEFIT HIRING.  [Ch.   6 

"Although  factors  and  other  depositaries  for  hire  are  thus  bound 
to  ordinary  diligence,  they  are  not  under  any  obligation  to  suggest 
to  their  principals  wise  precautions  against  inevitable  accident.^-" 
They  are  therefore  not  bound  to  advise  insurance  against  fire;  much 
less  are  they  bound  to  procure  insurance  upon  the  thing  bailed, 
without  some  authority,  express  or  implied,  from  their  employer.'^' 
It  is  quite  a  different  question  whether  they  may  not  insure  the 
thing  bailed,  not  only  on  their  own  account,  but  also  for  the  benefit 
of  their  bailors.  It  has  been  held  that  factors  may  procure  insur- 
ance, not  only  for  the  benefit  of  themselves,  but  also  of  their  prin- 
cipals, even  when  they  are  not  obliged  to  do  so.^^^  But  whether 
naked  consignees  of  goods,  or  mere  depositaries  for  hire,  may  so  do, 
is  a  question  which  seems  not  as  yet  to  have  been  directly  adjudi- 
cated." "» 

TERMINATION  OF  RELATION. 

46.  A  bailment  for    hire    may   be  terminated   in  various 
■ways, — inter  alia: 

(a)  By  accomplishment  of  its  purpose. 

(b)  By  operation  of  law. 

(c)  By  mutual  consent. 

(d)  By  bailee's  wrong. 

(e)  By  loss  or  destruction  of  the  property  bailed. 

Bailments  for  hired  use,  or  for  hired  services,  may  be  terminated 
in  a  variety  of  ways,  as  by  full  performance,  or  a  decisive  interrup- 
tion."* The  parties  may  terminate  it  by  mutual  consent,  but  nei- 
ther party  alone  can  do  so.  Where  a  time  is  fixed  for  the  perform- 
ance of  the  bailment,  it  will  continue  until  that  time,  or,  if  no  time 

3  26  Jones,  Bailm.  101,  102;    Story,  Bailm.  §  456. 

826  Jones,  Bailm.  102. 

3  2T  story,  Ag.  §  111;  De  Forest  v.  Fulton  Fire  Ins.  Co.,  1  Hall  (N.  Y.)  84, 
106,  107,  134,  135;   Lucena  v.  Craufurd,  2  Bos.  &  P.  (N.  R.)  269,  326. 

828  Story,  Bailm.  §  456. 

320  Story,  Bailm.  §  418;  Schouler,  Bailm.  (2d  Ed.)  §  156.  If  bailment  Is  for 
explicitly  declared  purpose,  it  terminates  whenever  that  purpose  is  accom- 
plished.    Cobb  V.  Wallace,  5  Gold.  (Tenn.)  539. 


§  47]  TERMINATION  OF  RELATION REDELIVERY.  2'>3 

is  fixed,  It  will  continue  a  reasonable  time."'  The  bailnu-nt  Ih 
terminated  by  the  loss  or  destruction  of  the  thin^  bailed,  and  Itn 
couTersion  by  the  bailee  will  at  least  give  fhe  bailor  a  right  to  ter 
minate  the  bailment.""  The  bailment  is  terminated  bv  operatioji 
of  law  whenever  the  bailee  becomes  full  owner  of  the  thing.  Death 
of  either  party  will  not  ordinarily  terminate  the  bailment,  unless 
the  bailment  contract  was  of  such  a  strictly  personal  nature  that 
its  performance  is  thereby  rendered  impossible.""' 

Where  the  bailment  has  clearly  terminated,  as  by  the  exi)iratioii 
of  a  fixed  tirae,-"^  or  its  conversion  or  destruction,*'*  no  demand 
need  be  made  by  the  bailor  before  bringing  suit.  A  demand  in 
such  cases  would  be  useless.  But,  when  there  is  any  uncertainty 
as  to  whether  or  not  the  bailment  has  terminated,  a  demand  should 
be  made.""' 

SAME— KEDELIVERY. 

47.  At  the  termination  of  the  hiring  the  property  must  be 
redelivered  or  delivered  over,  together  with  all  its 
increments. 

At  the  termination  of  the  hiring,  the  property  must  be  (Icliven-d 
back,  or  over,  according  to  the  terms  of  the  bailment.  This  rede- 
livery marks  the  termination  of  the  bailment.  The  principles  gov- 
erning the  duty  to  redeliver,  already  discussed  in  connection  with 
other  classes  of  bailments,  are  equally  applicable  here,  and  will  not 
be  repeated.^ ^* 

830  Bailee  must  retura  property  whenever  called  upon,  after  reasonable 
time,  if  time  is  not  fixed  by  agreement  or  by  nature  of  objwt  to  be  accom- 
plished.   Cobb  v.  Wallace,  5  Old.  (Tenn.)  589. 

381  Bailment  for  hire  for  term  is  ended  by  absolute  sale  by  bailee  of  prop- 
erty bailed  before  expiration  of  term,  though  such  sale  pass  no  title;  and 
owner  may  mamtain  trover  therefor  if  vendee  refuses  to  make  delivery  on 
demand;  and  rule  is  same,  though  bailee  had  right  to  purchase  the  article 
within  term  by  paying  price  thereof.  Bailey  v.  Colby,  34  N.  U.  29.  And  see 
Dunlap  V.  Gleason,  16  Mich.  158. 

83  2  !See  ante,  p.  73. 

333  Morse  v.  Crawford.  17  Vt.  499;  Ross  v.  Clark.  27  Mo.  M9:  Neifus  r. 
Simpson,  99  Mass.  388;    Benje  v.  Creagh's  Adm'r,  21  Ala.  15L 

3." 4  Morse  v.  Crawford,  17  Vt.  499. 

8  36  Schouler,  Bailm.  (2d  Ed.)  §  150. 

8!<8  See  ante,  pp.  11,  78,  'JcS,  i'oii. 


254  INNKEEPEBS.  (.Ch.  6 

CHAPTER  VL 

IMNKEEPEKS. 

48.  Innkeeper  Defined. 

49.  Who  are  Guests. 

50.  Special  Agreement. 

51.  Commencement  of  Relation. 

52.  Rights  and  Liabilities  of  Innkeepers. 

53.  Duty   to  Receive  Guests. 

54.  Liability  for  Guests'  Goods. 

55.  For  What  Property  Liable. 

56.  Limited    Liability. 

57.  Innkeeper's  Lien. 

58.  Waiver. 

59.  Enforcement. 
60-Gl.    Termination  of  Relation. 

62.    Innkeepers  as  Ordinary  Bailees. 

INNKEEPER  DEFINED. 

48.  All  innkeeper  is  one  v7ho  holds  himself  out  to  furnish 
food  and  lodging,  or  lodging  alone,  to  transients. 
This  does  not  include — 

(a)  Keepers  of  mere  restaurants   and  eating  houses  (p. 

259). 

(b)  Persons    giving  entertainment   only  occasionally  (p. 

260). 

(c)  Liodging  and  boarding  house  keepers  (p.  261). 

(d)  Sleeping-car  and  steamship  companies  (p.  262). 

The  definitions  of  an  innkeeper  which  have  been  given  by  the 
courts  and  text  writers  have  varied  with  the  times,  and  the  modes 
of  traveling,  and  the  manner  of  giving  public  entertainment  to 
travelers.^     The  definition  given  by  Best,  J.,  in  Thompson  v.  Lacy  ^ 

1  McClaIn,  Synopsis  of  Bailm.  23.  The  history  of  inns,  and  the  derivation 
of  the  word  "hotel,"  are  discussed  at  length  by   Daly.  J.,  In  Cromwell  v. 

«  3  Barn.  &  Aid.  283,  287. 


§    48]  INNKEEPER    DEFINED.  255 

is  substantially  the  same  as  that  given  in  the  black-letter  text.      It 
is  as  follows:     "An  inn  is  a  house,  the  owner  of  whi<-h  holds  out 

Stephens.  2  Daly  (N.  Y.)  15.  17,  as  follows:  "But  this  is  a  word  of  wide  ap- 
plication, and  as  the  meaning  which  is  to  be  attached  to  it  in  this  country 
has  been  the  subject  of  much  discussion  uiiou  the  argument.  It  may  be 
well  to  refer  to  its  origin  and  past  history,  as  one  of  the  means  of  deter- 
mining its  exact  signification.  The  word  Is  of  French  origin,  being  derived 
from  'hostel,'  and,  more  remotely,  from  the  Latin  word  'hospes.'  a  word 
having  a  double  signification,  as  it  was  used  by  the  Konians  both  to  denote 
a  stranger  who  lodges  at  the  house  of  another,  as  well  as  the  master  of  a 
house  who  entertains  travelers  or  guests.  Among  the  Romans  it  was  a  uni- 
versal custom  for  the  wealthier  classes  to  extend  the  hospitality  of  their 
house  not  only  to  their  friends  and  connections  when  they  came  to  a  city,  but 
to  respectable  travelers  generally.  Tliey  had  inns,  but  they  were  kept  by 
slaves,  and  were  places  of  resort  for  the  lower  orders,  or  for  the  accommoda- 
tion of  such  travelers  as  were  not  in  a  condition  to  claim  the  hospitality  of 
the  better  classes.  On  eitlier  side  of  the  spacious  mansions  of  the  wealthy 
patricians  were  smaller  apartments,  known  as  the  hospitium,  or  place  for  tlu- 
entertainment  of  strangers,  and  the  word  'hospes'  was  a  term  to  designate 
the  owner  of  such  a  mansion,  as  well  as  the  guest  whom  he  received.  Andrew's 
Lex.  This  custom  of  the  Romans  prevailed  in  the  earlier  part  of  the  Middle 
Ages.  From  the  fifth  to  the  ninth  century,  traveling  was  dilficult  and  dan- 
gerous. There  was  little  security  except  within  castles  or  walled  towns. 
The  principal  public  roads  had  been  destroyed  by  centuries  of  continuous 
war,  and  such  thoroughfares  as  existed  were  infested  by  roving  bands,  who 
lived  exclusively  by  plunder.  In  such  a  state  of  things,  there  could  be  little 
traveling,  and  consequently  the  few  inns  to  be  found  were  rather  dens  to 
which  robbers  resorted  to  carouse  and  divide  their  spoils,  than  places  for  the 
entertainment  of  travelers.  Ilistorie  des  Hotelleries,  Cabarets,  etc..  par 
Michel  et  Foumier,  Paris,  1851,  p.  181.  The  effect  of  a  condition  of  society 
like  this  was  to  make  hospitality  not  only  a  social  virtue,  but  a  religious 
duty,  and  in  the  monasteries,  and  in  all  the  great  religious  establishments, 
provision  was  made  for  the  gratuitous  entertainment  of  wayfarers  and 
travelers.  Either  a  separate  building,  or  an  apartment  within  the  monastery, 
was  devoted  exclusively  to  this  purpose,  which  was  in  charge  of  an  olli.i-r 
called  the  'hostler,'  who  received  the  traveler,  and  conducted  him  to  this 
apartment,  which  was  fitted  up  with  beds,  where  he  was  allowed  to  tarry 
for  two  days,  and  to  have  his  meals  in  the  refectory,  while.  If  he  journeyed 
upon  horseback,  provender  was  provided  by  the  hostler  for  his  beast  in  the 
stables.  Fosbroke's  Monachlsm  (3d  Ed.)  238;  Davies.  2,  7G9.  In  many  coun- 
tries, this  apartment,  or  guest  hall,  of  a  monastery  retained  the  original 
Latin  name  of  'hospitium,'  but  in  France  the  word  was  blended  wlib 
'hospes'  and  changed  into  'hospice'  ;  and  it  afterwards  underwent  another 
change.    As  civilization  advanced,  and  the  nobility  of  France  deserted  their 


256  INNKEEPERS.  [Ch.   6 

that  he  will  receive  all  travelers  and  sojourners  who  are  willing  to 
pay  a  price  adequate  to  the  sort  of  accommodation  provided,  and 

strong  castles  for  spacious  and  costly  residences  in  the  towns,  they  erected 
their  mansions  upon  a  scale  sufficiently  extensive  to  enable  them  to  dis^ 
charge  this  great  duty  of  hospitality,— as  Is  still,  or  was  very  recently,  the 
custom  among  the  nobility  and  w^ealthier  classes  in  Russia,  and  In  some  of 
the  Northern  countries  of  Europe.  Borrowing,  by  analogy,  from  an  existing 
word,  and  to  distinguish  it  from  the  guest  house  of  the  monastery,  every 
such  great  house  or  mansion  was  called  a  'hostel,'  and,  by  the  mutation  and 
attrition  to  which  these  words  are  subject  in  use,  the  's'  was  gradually 
dropped  from  the  word,  and  it  became  'hotel.'  As  traveling  and  intercourse 
increased,  the  duty  upon  the  nobility  of  entertaining  respectable  strangers 
became  too  onerous  a  burden,  and  establishments  in  which  this  class  of  per- 
sons could  be  entertained  by  paying  for  their  accommodation  sprung  up  in 
the  cities,  towns,  and  upon  the  leading  public  roads,  which,  to  distinguish 
them  from  the  great  mansions  or  hotels  of  the  wealthy,  and  at  the  same 
time  to  denote  that  they  were  superior  to  the  'auberge'  or  'cabaret,'  were 
called  'hotelleries,'  a  name  which  has  been  in  use  in  Fi-auce  for  several 
centuries,  and  is  still  in  use  to  some  extent  as  a  common  term  for  inns  of 
the  better  class,  while  the  word  'hotel,'  in  France,  has  long  ceased  to  be  con- 
fined to  its  original  signification,  and  has  become  a  word  of  the  most  exten- 
sive meaning.  It  is  the  term  for  the  mansion  of  a  prince,  nobleman,  minister 
of  state,  or  of  a  person  of  distinction  or  of  celeority.  It  is  applied  to  a  hos- 
pital, as  Hotel  Dieu;  or  to  a  town  hall,  as  Hotel  de  Ville;  to  the  residence 
of  a  judge,  to  certain  public  offices,  and  to  any  house  in  which  furnished 
apartments  are  let  by  the  day,  week,  or  month.  Roquefort,  Etymologique 
Francais,  Paris,  1829;  Dictionnaire  de  I'Academie  Francais,  1798,  et  Com- 
plement au  Dictionnaire;  Bescherelle,  Dictionnaire  Francais.  The  word, 
though  so  long  in  use  in  France,  is  of  comparatively  recent  introduction 
Into  the  English  language.  The  Saxon  word  'inn'  was  employed  to  denote 
a  house  where  strangers  or  guests  were  entertained,  down  to  the  time 
of  the  Norman  Invasion;  and,  under  the  Norman  rule,  it  was,  in  the  pop- 
ular tongue,  the  word  for  the  town  houses  in  which  great  men  resided 
when  they  were  in  attendance  on  court,  several  of  which  became  afterwards 
legal  colleges,  under  the  well-known  title  of  'inns  of  court.'  Fearce,  50. 
In  all  legal  proceedings,  however,  and  wherever  the  Norman  French  was 
spoken,  the  word  'hostel'  was  the  term  for  all  such  establishments.  The 
places  where  entertainment  could  be  procured  for  a  compensation,  to  distin- 
guish them  from  the  inns  or  great  houses  where  it  was  furnished  gratui- 
tously, were  called,  in  English,  'common  inns'  ;  while  in  Norman  French, 
by  a  change  analogous  to  that  which  had  occurred  In  France,  they  were 
called  first  'hostelleries,'  and  afterwards  'hostries.'  Y.  B.  42  Edw.  III.  p. 
U;  Id.,  22  Hen.  VI.  38;  Statutes  5  Edw.  III.  c.  11;  Fitzh.  Abr.  pp.  2,  28; 
Brooke,  Abr.  pp.  4,  15;    Dyer,  158a,  note;    Lee  &  Griasel's  Case,  Godb.  347, 


§    48]  INKKEEPER   DEFINED.  257 

who  come  in  a  situation  in  which  they  are  fit  to  be  received."  '     The 
names  "inn,"  "hotel,"  and  "tavern"  are  used  witliout  any  distinction 

Kelh.  Diet.  Law,  Fr.  Diet.  1701.  To  'host'  was  to  put  up  at  an  Inn;  and 
'hostler,'  before  leferred  to  as  the  title  of  the  olfleer  in  the  monastery  who 
was  charged  with  the  entertainment  of  guests,  was  the  Norman  word  for 
Innkeeper,  and  was  in  use  until  about  the  time  of  Elizabeth,  when,  the  keep- 
ing of  horses  at  livery  beeoming  a  distinet  occupation,  It  was  the  term  for 
the  keeper  of  a  liveiy  stable  (Case  of  an  Hostler,  Yel.  07;  Cooke.  Ent  347^,. 
and  afterwards  of  the  groom  who  has  charge  of  the  stables  of  an  inn  (Calyo'i* 
Case,  8  Coke,  32a;  Bailey,  Diet.).  It  appears  from  a  note  of  Malone,  referred 
to  in  Todd's  edition  of  Johnson's  Dictionary,  that  the  word  'hotel*  came 
into  use  in  England  by  the  general  introduction  in  London,  after  17(jO.  of  thf 
kind  of  establishment  that  was  then  common  in  Paris,  called  an  'hcin>l  garni,' 
a  large  house  in  which  fui-nishod  apartments  were  lot  by  the  day,  week,  or 
month.  In  Barclay's  Dictionary  (1772),  in  the  first  edition  of  Walker  (1791). 
and  in  Sheridan's  Dictionary  (1795),  'hotel'  is  given  as  the  proper  pronun- 
ciation of  'hostel,'  an  inn;  and  in  the  dictionaries  of  Jones  (1798 1,  and  of 
Perry  (1805),  it  is  incorporated  as  an  English  word,  and  is  defined  In  the- 
latter  to  be  'an  inn,  having  elegant  lodgings  and  accommodations  for  gentle- 
men and  genteel  families.'  Todd  (1814)  defines  It  to  be  'a  lodging  house  for 
the  accommodation  of  occasional  lodgers,  who  are  supplied  with  apartments 
hired  by  the  night  or  week.'  The  definition  given  by  Knowles  (1835)  is  sim- 
ply 'a  lodging  house'  ;  by  Smart  (1830),  'a  lodging  house  or  inn'  ;  Beidi 
(1845),  'an  inn  or  a  lodging  bouse'  ;  Bong.  (1848),  'an  inn'  ;  and  by  Dr. 
Latham,  in  his  edition  of  Johnson's  Dictionary,  'an  inn  of  a  superior  kitid.' 
The  word  was  introduced  into  this  country  about  1797.  Before  that  time. 
houses  for  the  •entertainment  of  travelers  in  this  city  were  at  first  called 
'inns,'  and  afterwards  'taverns'  and  'coffee  houses.'  In  1794  an  a.ssocia 
tion,  organized  upon  the  principle  of  a  tontine,  erected  in  Wall  street  what 
was  then  a  very  superior  house  for  the  accommodation  of  travelers,  called 
the  'Tontine  Coffeehouse,'  the  success  of  which  led  to  the  formation  of  an- 
other company  for  the  erection  of  one  upon  a  still  more  extensive  scale  !d 
Broadway.  This  structure,  which  was  called  the  'Tontine  Tavern,*  was 
built  about  1796,  upon  the  site  of  what  had  been  a  famous  tavern  or  cofifeo- 
house  in  colonial  times;  and  from  the  extensive  accommodation  It  afforded, 
and  the  superior  character  of  its  appointments,  it  was  then,  and  for  many 


3  For  other  cases  defining  an  innkeeper,  see  Wintermute  v.  Clark.  5  Sandf. 
(N.  Y.)  242,  247;  People  v.  Jones,  54  Barb.  (N.  Y.)  311;  Walling  v.  Potter, 
35  Conn.  183;  Klsten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72,  75;  .Mateer  t. 
Brown,  1  Cal.  221,  227;  Dansey  v.  Richardson,  3  El.  &  Bl.  144;  Doe  v.  I>au. 
ing,  4  Camp.  77;  Com.  v.  Weatherbee,  101  Mass.  214;  Hafferty  v.  New  Brum- 
wick  Fire  Ins.  Co.,  18  N.  J,  Law,  480;   Gray  v.  Com.,  9  Dana  {Kj.)  300. 

LAW  BAILM. — 17 


258  INNKEEPERS.  [Ch.  6 

in  legal  meaning  in  this  country,*  though  such  distinctions  are 
made  in  England.^  The  definition  of  an  inn  given  by  Justice  Bay- 
ley,  in  the  above  case,  as  "a  house  where  a  traveler  is  furnished  with 
everything  which  he  has  occasion  for  while  on  his  way,"  is  com- 
prehensive enough  to  include  every  description  of  an  inn;  but  a 
house  that  does  not  fill  the  full  measure  of  this  definition  may  be 
an  inn.  It  is  not  regarded  as  essential  to  an  inn  that  wine  or  spir- 
ituous or  malt  liquors  should  be  provided  for  the  guests.®  At  an 
inn  of  the  greatest  completeness,  entertainment  is  furnished  for 
the  traveler's  horse,  as  well  as  for  the  traveler,  but  it  has  long  since 

years  afterwards,  the  most  celebrated  establishment  of  the  kind  in  the  coun- 
try. There  was  at  that  period  a  rage  for  everything  French;  The  city  was 
filled  with  refugees  from  France  and  from  the  French  West  India  posses- 
sions, whose  residence  among  us  produced  a  great  change  in  our  social 
habits,  amusements,  and  tastes  (Watson's  Annals,  209),  while  a  fierce  party 
strife  prevailed  between  those  wlio  advocated  the  principles  of  the  French 
Revolution  and  those  wlio  condemned  them.  The  French  national  airs 
were  sung  in  the  streets;  men  mounted  the  tricolor  cockade;  and  the  i)»'n 
prietors  of  the  new  tavern,  falling  in  with  the  popular  current,  gave  a 
French  name  to  their  establishment,  by  changing  it  from  the  'Tontine  Tav- 
ern' to  the  'City  Hotel.'  The  new  word  was  afterwards  adopted  by  thf^ 
proprietors  of  other  houses  for  the  entertainment  of  travelers  in  this  and 
neighboring  cities,  and,  becoming  general,  found  its  way  into  American  dic- 
tionaries. Allison,  one  of  the  earliest  of  American  'lexicographers  (1813;. 
defines  it  to  be  'an  inn  of  a  high  grade;  a  respectable  tavern.'  Webster 
calls  it  'a  house  for  entertaining  strangers  or  travelers,'  and  says  that  'it 
was  formerly  a  house  for  genteel  strangers  or  lodgers,'  but  that  'the  name 
is  now  [1840]  given  to  any  inn.'  Worcester's  definition  (1846)  is,  'A  su- 
perior lodging  house  with  the  accommodations  of  an  inn;  a  public  house;  a 
genteel  inn;  an  inn;'  and  in  the  last  edition  of  Webster  (18G4)  there  is  given 
an  addition  to  the  previous  general  definition,  'An  inn;  a  public  house; 
especially  one  of  some  style  or  pretensions.'  It  is  to  be  deduced,  from  the 
origin  and  history  of  the  word,  and  the  exposition  that  has  been  given  of  it 
by  English  and  American  lexicographers,  that  an  hotel,  in  this  country,  is 
what  in  France  was  known  as  an  'hotelerie,'  and  in  England  as  a  'commoc 
inn.'  of  that  superior  class  usually  found  in  cities  and  large  towns." 

*  People  V.  Jones,  54  Barb.  311;    St.  Louis  v.  Siegist,  46  Mo,  593;   Lewis  v. 
Hitchcock,  10  Fed.  4;    Kopper  v.  Willis,  9  Daly  (N.  Y.)  460,  462. 

6  Jones  V.  Osborn,  2  Chit.  484,  486;   Wandell,  Inns,  15. 

6  Pinkerton  v.  Woodward,  33  Cal.  557,  596;   St  Louis  v.  Siegrist,  46  Mo.  593. 


§    ^^]  INNKEEPER   DEFINED.  25U 

been  held  that  this  was  not  essential  to  give  character  to  the  house 
as  an  inn.^ 

Lodging,  Only,  Furnished. 

It  is  not  necessary,  to  constitute  one  an  innkeeper,  and  subject 
to  the  liabilities  thereof,  that  he  furnish  both  food  and  lod^'ing. 
The  proprietors  of  the  so-called  "European  Hotels"  are  innkeci>ers, 
when  the}^  hold  themselves  out  to  furnish  lod5,nng  to  all  who  may 
apply,  though  meals  ai^e  furnished  only  a  la  carte,  or  not  at  all.' 
But  lodfrin(T  must  be  furnished  to  transients  applying  therefor,  or 
it  is  not  an  inn.  Thus,  where  a  building  is  divided  into  suites  or 
<lats,  each  suite  rented  to  families  for  honseWjin^^  i>iiriQniR.>H;  heat. 
hot  and  cold  water,  and  janitor's  services  being  furnished  lQ..eai:L 
suite  by  the  proprietor,  but  where  no  board.^dtring^  or  accommo- 
dation for  transient  patrons  is  provided,  the  house  is  not  an  inn." 
Restaurants  and  Eating  Houses. 

On  the  other  hand,  the  furnishing  of  food  alone,  without  lod;; 
ing,  does  not  make  one  an  innkeeper.  A  mere  restaurant  or  eat 
ing  house  for  meals  cannot  be  considered  an  inn,  nor  can  the  liabili 
ties  attaching  to  innkeepers  be  extended  to  the  proprietors  of  such 
establishments.  They  are  wanting  in  some  of  the  requisites  neces- 
sary to  constitute  them  inns,  as  no  lodging  places  are  provided  for 
travelers;  and,  although  the  proprietor  may  carry  on,  in  another 
part  of  his  premises,  the  business  of  an  innkeeper,  it  does  nut  fol 
low  that  the  liability  for  that  part  of  his  premises  is  to  be  extended 
to  the  whole.^° 

^  Thompson  v.  Lacy,  3  Barn.  &  Aid.  2S3;  1  Smith,  Lead.  Ca.s.  (ii.»tos  to 
Coggs  V.  Bernard)  402;  Kisten  v.  Hildebrand,  9  B.  Mou.  72,  74;  Pinkortou 
V.  Woodward,  33  Cal.  557,  59(]. 

8  Krohn  v.  Sweeney,  2  Daly,  200;  Fiukerton  v.  Woodward.  33  Cal.  .'>o7; 
Willard  v.  Reinhardt,  2  E.  D.  Smith  (N.  Y.)  14S;  Wintermute  v.  Clark.  5 
Sand.  (N.  Y.)  243;  Bernstein  v.  Sweeny,  33  N.  Y.  Super.  Ct.  271;  TayU-r  v. 
Mouiiot,  4  Duer  (N.  Y.)  116;  Kisten  v.  Hildebrand.  9  B.  Mon.  (Ky.)  72.  One 
who  holds  himself  otit  to  the  world  as  an  innkeeper  may  be  regarded  as 
such,  though  the  only  eating  department  of  liis  establishment  is  a  restaurant 
in  the  basement,  connected  with  the  house  by  a  stairway,  and  cou.lucted  by 
the  innkeeper  and  two  other  persons  jointly,  who  share  the  prolila.  Tiuker- 
ton  V.  Woodward,  33  Cal.  557. 

»  Davis  v.  Gay,  141  Mass.  531,  6  N.  E.  549. 

10  Carpenter  v.  Taylor,  1  Hilt.  (N.  Y.)  li»3;  Queen  v.  Rymer.  2  Q.  ».  Div.  1.36; 
The  Civil  Rights  Bill,  1  Hughes  (U.  S.)  541,  543,  Fed.  Cas.  No.  2.774;    Buuner 


260  INNKEEPEKS.  [Ch.  6 

Occa/lonal  Entertainment. 

There  is  no  reason  why  one  may  not  be  an  innkeeper  at  certain 
seasons  of  the  year  and  not  at  other  times.  This  is  undoubtedly 
the  relation  in  which  the  proprietors  of  hotels  at  our  summer  resorts 
stand  to  those  whom  they  entertain,  though  they  keep  their  houses 
open  during  a  few  months  of  the  year  only.  They  are  innkeepers, 
however,  only  when  the  facts  are  such  as  to  bring  them  within  our 
definition  of  an  innkeeper,  as  given  above.  In  a  number  of  cases  the 
facts  have  been  such  that  the  proprietors  of  similar  places  have 
been  held  not  to  be  innkeepers.  Thus,  in  Parkhouse  v.  Forster,'' 
a  special  verdict  found  the  following  facts:  "The  plaintiff  kept  a 
house  at  Epsom  (a  watering  place),  and  let  lodgings  to  such  persons 
as  might  resort  to  that  place  to  drink  the  waters,  and  on  account 
of  the  salubrity  of  the  air;  and  that  he  dressed  meat  for  his  lodg- 
ers at  4  pence  per  joint,  and  sold  them  beer  at  2  pence  per  mug, 
and  also  found  them  stable  room,  hay,  etc.,  for  horses,  at  such  and 
such  rates,"  According  to  this  description  of  his  business,  the  ques- 
tion was,  was  he  an  "innkeeper,"  in  the  legal  sense  of  the  word?  and 
the  court  determined  that  he  was  not.  Holt,  C.  J,,  said,  "The  case 
is  so  plain  that  there  is  no  occasion  to  give  reasons,"  and  accordingly 
gave  none.^'' 

So,  in  Lyon  v.  Smith,^^  the  court  said:  "To  render  a  person  liable 
as  a  common  innkeeper  it  is  not  sufficient  to  show  that  he  occa- 
sionally entertains  travelers.  Most  of  the  farmers  in  a  new  coun- 
try do  this,  without  supposing  themselves  answerable  for  the  horses 
or  other  property  of  their  guests  which  may  be  stolen  or  otherwise 
lost  without  any  fault  of  their  own.  Nor  is  such  the  rule  in  older 
countries,  where  it  would  operate  with  far  less  injustice,  and  be 

V.  Welborn,  7  Ga.  296;  Willard  v.  Reinbardt,  2  E.  D.  Smith  (N.  Y.)  148;  Wal- 
ling V.  Potter,  35  Conn.  183;  Kisten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  73;  Doe  v. 
Laming,  4  Camp.  77;    In  re  Kelly  v.  Excise  Com'rs,  54  How.  Prac.  332. 

11  5  Mod.  427. 

12  The  same  has  been  held,  on  similar  facts,  in  Parker  v.  Flint,  12  Moil.  254, 
and  Bonner  v.  Welborn,  7  da.  lliJtJ.  See,  also,  Parkhurst  v.  Foster,  1  Ld. 
Rayra.  479,  Garth.  417;  Bac.  Abr.  tit.  "Inns  &  Innkeepers,"  B;  Farnworth  v. 
Packwood,  Holt,  N.  P.  209,  1  Starkie,  249;  Mason  v.  Grafton,  Hob.  245b;  Dr. 
&  Stud.  137b;  Calye's  Case,  8  Coke,  32a;  Overseers  of  Poor  of  Crown  Point  v. 
Warner,  3  Hill  (N.  Y.)  150;   State  v.  Chamblyss,  1  Cheves  (S.  C.)  220. 

18  Morri3  (Iowa)  244,  246. 


§    48]  INNKEKPEB    DEFINED.  201 

less  opposed  to  good  policy,  than  wiLli  us.  To  be  subjectt-d  to  th*» 
same  responsibilities  attaching  to  innkeepers,  a  person  muHt  m?ike 
tavern  keeping,  to  some  extent,  a  regular  business,— a  means  of  live- 
lihood; he  should  hold  himself  out  to  the  world  as  an  innkr-'^T. 
It  is  not  necessary  that  he  should  have  a  sign  or  ajicenst',  provld.  d 
that  he  has  in  any  other  manner  authorized  the  "grTrrraTuiich'rsiand- 
ing  that  his  was  a  public  house,  where  strangers  had  a  right  to  re- 
quire accommodation.  The  person  who  occasionally  entertains  oth- 
ers for  a  reasonable  compensation  is  no  more  subject  to  the  ex- 
traordinary responsibility  of  an  innkeeper  than  is  he  liable  as  a 
common  carrier  who,  in  certain  special  cases,  carries  the  projterty  of 
others  from  one  place  to  another  for  hire."  ** 
Lodging  and  Boarding  Houses. 

Keepers  of  lodging  and  boarding  houses  are  not  innkeepers,  nor 
subject  to  their  liabilities.^"^  The  proprietor  of  such  a  house  does 
not  hold  himself  out  to  the  public  as  prepared  to  provide  acconinio 
dations  for  all  who  ma}'  apply,  and  he  is  not  lj<iund  to  receive  anv 
person  unless  he  chooses  to  do  so,^"  though,  as  will  be  seen,*^  an 
innkeeper  must.  So,  in  a  boarding  house,  the  guest  is  under  an  ex- 
press contract,  at  a  certain  rate,  for  a  certain  period  of  time;  but  in 
an  inn  there  is  no  express  engagement.  The  guest,  being  on  his  way, 
is  entertained  from  day  to  day,  according  to  his  business,  upon  an 
implied  contract.^^  So,  the  keeper  of  a  common  inn  may  have  in 
mates  of  his  house,  for  a  reward,  to  whom  he  may  not  be  under 
the  strict  liability  of  an  innkeeper.^"     So  may   the  keeper  of  a 

1*  And  see  Cady  v.  McDowell,  1  Lans.  (N.  Y.)  484;  Klsten  v.  Hlldebmnd. 
9  B.  Mon.  (Ky.)  72;  Ilowth  v.  Frankliu,  20  Tex.  70S;  State  v.  Mathews.  2 
Dev.  &  B.  (N.  C.)  424. 

10  They  are  liable  for  the  goods  of  their  lodgers  or  boarders  only  as  ordi- 
nary bailees  for  liire.  Smith  v.  Read,  52  How.  I'rac.  14;  Vance  v.  Tbrock- 
morton,  5  Bush  (Ky.)  41;  Manning  v.  Wells,  9  Humph.  (Touu.)  74(>;  Johuson 
V.  Reynolds,  3  Kan.  257;  Wiser  v.  Chesley,  53  Mo.  547;  Dansey  v.  Rldjard- 
Bon,  3  El.  &  Bl.  144;    Holder  v.  Soulby,  8  C.  B.  (N.  S.)  254. 

i«  Cady  V.  McDowell,  1  Lans.  (N.  Y.)  484.  480;  Cromwell  v.  Stephens.  2 
Daly  (N.  Y.)  15;  Dansey  v.  Richardson.  3  El.  &  Bl.  144.  159;  The  Quceu  t. 
Rymer,  2  Q.  B.  Dlv.  13G. 

17  Post,  p.  274. 

i»  Willard  v.  Reinhardt,  2  E.  D.  Smltli,  14a 

IS  Hall  V.  Pike,  100  Mass.  495;  Vance  v.  Throckmorton,  B  Bush  (Ky.)  41; 
Pollock  V.  Landis,  36  Iowa,  651;   Cross  v.  Wilklns.  43  N.  U.  332;   John*on  x. 


262  INNKEEPERS.  [Ch.  6 

boarding  house  occasionally  entertain  transient  persons  without 
acquiring  the  character,  or  being  under  the  responsibilities,  of  an 
innkeeper.  And,  certainly,  a  man  professing  to  be  the  keeper  of  a 
boarding  house  or  a  licensed  coffee  house  is  not,  though  he  also  en- 
tertain travelers,  liable  to  his  boarders  as  an  innkeeper  is  liable  to 
his  traveling  guests.^" 

An  establishment  may  have  a  double  character,  being  both  a 
boarding  house  and  an  inn.  In  respect  to  transient  persons,  who, 
without  any  stipulated  contract,  remain  from  day  to  day,  it  will  be 
an  inn;  while,  as  to  those  residing  there  under  special  contracts, 
it  will  be  a  boarding  house,^^ 

Sleeping-Car  Companies  and  Steamship  Companies. 

Sleeping-car  companies  are  held  not  to  occupy  the  relation  of  inn- 
keepers to  those  who  hire  berths  of  them.^^  The  grounds  for  so 
holding  are,  as  stated  in  one  case,  that  the  sleeping-car  company 
does  not,  like  an  innkeeper,  undertake  to  accommodate  the  travel- 
ing public,  indiscriminately,  with  lodging  and  entertainment.  It 
only  undertakes  to  accomodate  a  certain  class, — those  who  have 
already  paid  the^ir  fare,  and  are  provided  with  a  first-class  ticket,  en- 
titling them  to  ride  to  a  particular  place.^^  It  does  not  undertake 
to  furnish  victuals  and  lodging,  but  lodging  alone,  as  we  under- 
stand.    There  is  usually  a  dining  car  attached  to  the  train,  not 

Reynolds,  3   Kan.   257;    Wiser  v.  Cheslej^  53  Mo.  547;    Taylor  v.   Downey 
(Mich.)  62  N.  W.  71G.    And  see  post,  p.  299. 
2  0  Kisten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72. 

21  Seward  v.  Seymour,  Anthon,  Law  Stud.  51;  Cromwell  v.  Stephens,  2 
Daly  (N.  Y.)  15. 

22  Pullman  Palace-Car  Co.  v.  Smith,  73  111.  3G0;  Lewis  v.  New  Yoric  Sleep- 
ing-Car  Co.,  143  Mass.  267,  273;  Woodruff  Sleeping  &  Parlor  Coach  Co.  v. 
Diehl,  84  Ind.  474,  481;  Blum  v.  Southem  Pullman  Palace-Car  Co.,  1  Flip. 
500,  Fed.  Cas.  No.  1,574;  Dargan  v.  Pullman  Palace-Car  Co.,  2  Willson,  Civ. 
Cas.  Ct.  App.  607;  Pullman  Palace-Car  Co.  v.  Gaylord,  6  Ky.  La"\v  Rep.  279; 
Welch  V.  Pullman  Palace-Car  Co.,  16  Abb.  Prae.  (N.  S.)  352;  Pullman  Car 
Co.  V.  Gardner,  3  Penny.  (Pa.)  78;  Tracy  v.  Pullman  Car  Co.,  67  How. 
Prac.  154.  But  see,  contra,  Pullman  Palace-Car  Co.  v.  Lowe,  28  Neb.  239, 
44  N.  W.  220. 

23  Welch  V.  Pullman  Palace-Car  Co.,  16  Abb.  Prac.  (N.  S.)  352,  357.  But 
that  they  are  bound  to  receive  any  one  who  applies  for  a  berth,  see  dictum 
in  Nevin  v.  Pullman  Palace-Car  Co.,  106  111.  222. 


§    ^8  INNKEEPER    DKFINFD.  263 

owned  by  the  same  company,  nor  run  In  it.  The  slcepiut;  car 
company  furnishes  no  accommodation  whatever,  save  the  use  of 
the  berth  and  bed,  and  a  place  and  conveniences  for  toilet  pur- 
poses. An  innkeeper,  as  we  shall  see,  is  obliged  to  receive  and 
care  for  all  the  goods  and  property  of  the  traveler  which  he  may 
choose  to  take  with  him  upon  the  journey.  A  sleeping-car  company 
does  not  receive  pay  for,  nor  undertake  to  care  for,  any  propeily  or 
goods  whatever,  and  notoriously  refuses  to  do  so.  The  custody  of 
the  goods  of  the  traveler  is  not,  as  in  the  case  of  the  innkeeper,  ac- 
cessory to  the  principal  contract  to  feed,  lodge,  and  accommodate  the 
guest  for  a  suitable  reward,  because  no  such  contract  is  made.  Bo, 
too,  the  same  necessity  does  not  exist  here  as  in  the  case  of  a  com 
mon  inn.  At  the  time  when  this  custom  of  an  innkeepers  liability 
had  its  origin,  wherever  the  end  of  the  day's  journey  of  the  wayfaring 
man  brought  him,  there  he  was  obliged  to  stop  for  the  night,  and 
intrust  his  goods  and  baggage  into  the  custody  of  the  innkeeper. 
But  the  traveler  is  not  compelled  to  accept  the  additional  comfort  of 
a  sleeping  car;    he  may  remain  in  the  ordinary  car.** 

But  all  the  cases  seem  to  agree  that  the  companyjj  duty  is  to  ex- 
ercise  at  least  ordinary  care  for  the  security  of  passenger.flLjralu- 
ables.  Of  course,  this  care  must  be  in  proportion  to  the  danger 
reasonably  to  be  apprehended.  Such  danger  is  gi-eater  at  night, 
while  the  passenger  is  asleep,  than  in  the  daytime,  when  he  is  awjike 
and  can  care  for  himself.  This  point  is  well  stated  in  Blum  v. 
Southern  Pullman  Palace-Car  Co.:*"  "The  scope  of  the  liability 
of  companies  of  this  kind,  so  far  as  I  know,  has  never  been  judicially 
determined.  It  is  undoubtedly  the  law  that,  where  a  passenger 
does  not  deliver  his  property  to  a  carrier,  but  retains  the  exclusive 
possession  and  control  of  it  himself,  the  carrier  is  not  liable  in  caae 
of  a  loss, — as,  for  instance,  when  a  passengers  pocket  is  picked,  or 
an  overcoat  or  satchel  is  taken  from  a  seat  occupied  by  him.  Up<jn 
this  theorj^  it  is  insisted  by  defendant  [the  sleeping-car  company] 
that  it  cannot  be  held  liable  for  negligence,  inasmuch  as  the  cloth- 
ing and  effects  of  its  guests  are  never  formally  delivered  to  it.  I 
cannot,  for  a  moment,  accede  to  this  proposition.      It  is  scarcely  neo- 

•*  Pullman  Palace-Car  Co.  v.  Smith,  73  IIL  360. 
«6  1  Flip.  500,  Fed.  Cas.  No.  1,574. 


264  INNKEEPERS.  (_Ch.  6 

essary  to  say  that  a  person  asleep  cannot  retain  manual  posses- 
sion or  control  of  anything.  The  invitation  to  make  use  of  the  bed 
carries  with  it  an  invitation  to  sleep,  and  an  implied  agreement  to 
take  reasonable  care  of  the  guest's  effects  while  he  is  in  such  a  state 
that  care  upon  his  own  part  is  impossible.  There  is  all  the  deliv- 
ery which  the  circumstances  of  the  case  admit  I  think  it  should 
keep  a  watch  during  the  night,  see  to  it  that  no  unauthorized  per- 
sons intrude  themselves  into  the  car,  and  take  reasonable  care  to 
prevent  thefts  by  the  occupants."  ^' 

In  the  same  way,  it  has  been  held  that  a  steamship  company  does 
not  assume  the  responsibilities  of  an  innkeeper  towards  the  prop- 
erty of  a  passenger  kept  by  him  in  his  stateroom.*^ 

Holding  Out  as  Innkeeper. 

Although  one  mi<rht  not  b_e  an  innkeeper  within  the  ral£a_sh.own 
by  the  foregoing  paragraphs,  yet  he  may  assume  an  innkeeper's  lia- 
bility  by  holding  himself  out  to  the  public  to  be  such.'^  In  Pink- 
<3rton  V.  Woodward  ^^  it  was  said:  "The  rules  regulating  the  re- 
spective rights,  duties,  and  responsibilities  of  innkeeper  and  guest 
have  their  origin  in  considerations  of  public  policy,  and  were  de- 
signed mainly  for  the  protection  and  security  of  travelers  and  their 
property.  They  would  afford  the  traveler  but  poor  security  if,  before 
venturing  to  intrust  his  property  to  one  who,  by  his  agents,  cards, 
bills,  advertisements,  sign,  and  by  all  the  means  by  which  publicity 
and  notoriety  can  be  given  to  his  business,  represents  himself  as  an 
innkeeper,  he  is  required  to  inquire  of  the  employes  as  to  their  inter- 
est in  the  establishment,  or  take  notice  of  the  agencies  or  means  by 
which  the  several  departments  are  conducted.  The  same  consid- 
erations of  public  policy  that  dictated  those  rules  demand  that  the 
innkeeper  should  be  held  to  the  responsibilities  which,  by  his  rep- 
resentations, he  induced  his  guest  to  believe  that  he  would  assume." 

An  innkeeper  cannot  set  up  the  fact  that  he  is  not  licensed  as  a 
defense  to  his  liability.      A  license  does  not  change  the  character 

2  8  And  see  Woodruff,  etc.,  Coach  Co.  v.  Diehl.  84  Ind.  474,  483. 

2  7  Clark  V.  Bums,  118  Mass.  275;  Steamboat  Crystal  Palace  v.  Vanderpool, 
16  B.  Men.  (Ky.)  302;  and  see  post,  p.  400. 

2  8  Pinkerton  v.  Woodward,  33  Cal.  557;  Howth  v.  Franklin,  20  Tex.  798; 
Dickerson  v.  Rogers,  4  Humph.  (Tenn.)  179. 

29  33  Cal.  557. 


§  491 


WHO    ARE    QUESTS.  2G6 


of  the  business  of  those  who  entertain  travelers.  The  possession 
of  it  does  not  make  nor  the  want  of  it  prevent  a  person  from  being 
an  innkeeper  at  common  law;  it  is  his  business  alone  that  fixes  the 
status  of  a  party  in  this  respect.  A  license  saves  an  innkeeper 
from  the  penalty  of  being  an  innkeeper  without  license,  but  the  want 
of  it  does  not  save  him  from  his  liability  to  his  guests.  It  would 
be  a  perversion  of  justice,  and  a  fraud  upon  the  law,  if  he  could 
avail  himself  of  his  own  criminality  to  defeat  their  lawful  claims 
against  him.  Besides,  it  is  not  their  duty  to  inquire  whether  one 
who  entertains  travelers  is  duly  licensed,  if,  indeed,  they  could  as 
certain  this  upon  inquiry.^** 

WHO  ARE  GUESTS. 

49.  A  transient  who  patronizes  an  inn  as  such,  and  re- 
ceives accommodations  -with  the  consent  of  the  inn- 
keeper, is  a  guest. 

The  determination  of  the  question  of  who  are  guests  ^^  is  as  iin 
portant  as  to  decide  who  are  innkeepers;  for,  as  the  exceptional 
liabilities  which  will  be  subsequently  discussed  are  imposed  ouly 

80  Norcross  v.  Norcross,  53  Me.  163. 

31  As  we  proceed  with  the  discussion  of  the  subject,  the  inadequacy  of  the 
following  definitions  of  a  guest  will  become  apparent:  Every  one  who  is  re- 
ceived into  an  inn  and  has  entei-tainment  there,  for  which  the  innkeeper  has 
compensation  by  way  of  remuneration  or  reward  for  his  services,  Is  a  guest. 
Comegys,  C.  J.,  in  Russell  v.  Fagan  (Del.)  8  Atl.  258,  260.  A  guest  Is  one  who 
comes  without  any  bargain  for  time,  remains  without  one,  and  may  go  when 
he  pleases.  2  Pars.  Cont.  151.  A  guest  is  one  who  patronizes  an  inn  as  such. 
Walling  V.  Potter,  35  Conn.  1S3.  Any  one  away  from  home,  receiving  accom- 
modations at  an  inn  as  a  traveler,  is  a  guest,  and  entitled  to  hold  the  inn- 
keeper responsible  as  such.  Wintermute  v.  Clark,  5  Sandf.  (N.  Y.)  242,  247. 
adopted  in  PuUman  Palace-Car  Co.  v.  Lowe,  28  Neb.  239,  44  N.  W.  226. 
Guests  are  those  who  are  bona  fide  (really)  traveling,  and  make  the  use  of  an 
inn,  and  not  mere  neighbors  and  friends  who  visit  the  house  occasionally. 
Tidswell,  Innkeepers'  Legal  Guide,  1.  A  guest  is  "a  stranger  who  comes 
from  a  distance  and  takes  his  lodgings  at  a  place."  Webst.  Diet.  See,  also, 
a  valuable  article  hi  14  Cent  Law  J.  206;  and  Hall  v.  Pike,  100  Mass.  495; 
Norcross  v.  Norcross,  53  Me.  163;  Pinkerton  v.  Woodward,  33  Cal.  557;  Han- 
cock T.  Rand,  17  Hun,  279;  Phillips  v.  Henson,  30  Moak,  Eng.  R.  19;  Thomp- 


266  INNKEEPERS.  [Ch.  6 

on  those  who  are  strictly  innkeepers,'*  so  these  liabilities  exist  in 
favor  of  guests  alone,  and  not  in  favor  of  boarders,  or  persons  re- 
sorting to  the  inn  for  other  purposes  than  that  of  becoming  a  guest.* 
Thus,  a  man  who  goes  to  an  hotel  with  a  prostitute,  for  the  purpose 
of  having  sexual  intercourse,  is  not  a  guest,  though  he  registers 
and  is  assigned  a  room.'^  So,  a  man  who  engages  a  room  at  an 
hotel,  and  leaves  a  package  of  money  with  the  clerk,  but  does  not 
occupy  the  room  at  that  time,  is  not  a  guest,  when  his  primary  ob- 
ject is  to  deposit  his  money  in  a  safe  place.'* 

son  V.  Ward,  L.  R.  6  C.  P.  327;  Bradley  v.  Baylls,  8  Q.  B.  Dlv.  195;  Ness 
V.  Stephenson,  9  Q.  B.  Div.  245;  Hickman  v.  Thomas,  16  Ala.  666;  Ullman 
V.  State,  1  Tex.  App.  220;   Dickerson  v.  Rogers,  4  Humph.  (Tenn.)  179. 

82  See  ante,  p.  254. 

*  See  Mowers  v.  Fethers,  61  N.  Y.  34;  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485; 
Ingalsbee  v.  Wood.  36  Barb.  (N,  Y.)  452,  455;   Hulett  v.  Swift,  33  N.  Y.  571. 

S3  Curtis  V.  Mui-phy,  63  Wis.  4,  22  N.  W.  825.  In  this  case  Cole,  C.  J.,  said 
that  ''while  the  delinition  of  a  guest  has  been  somewhat  extended  beyond  its 
original  meaning,  it  does  not  include  everyone  who  goes  to  an  inn  for  con- 
venience to  accomplish  some  pui"pose.  If  a  man  and  woman  go  together  to,  or 
meet  by  concert  at,  an  inn  or  hotel  in  the  town  or  city  where  they  reside,  and 
take  a  room  for  no  other  purpose  than  to  have  illicit  intex'course,  can  it  be 
that  the  law  protects  them  as  guests?  Is  the  extraordinary  rule  of  liability 
which  was  originally  adopted  from  considerations  of  public  policy  to  protect 
travelers  and  wayfarers,  not  merely  from  the  negligence,  but  the  dishonesty, 
of  innkeepers  and  their  servants,  to  be  extended  to  such  persons?  *  *  * 
Then,  for  a  like  reason,  it  would  protect  a  thief  who  takes  a  room  at  an  inn, 
and  improves  the  opportunity  thus  given  to  enter  the  rooms  and  steal  the 
goods  of  guests  and  boarders."  Cf.  Mackbee  v.  Griffith,  2  Cranch,  C.  C.  336. 
Fed.  Cas.  No.  8,660;    Lloyd  v.  Johnson,  1  Bos.  &  P.  340. 

8  4  W.,  the  keeper  of  a  gambling  house,  closed  his  night's  business  at  2 
o'clock  a.  m.,  having  a  sum  of  money  upon  his  person,  and,  not  being  ready 
to  retire  for  the  night,  and  not  wishing  to  carry  his  money  upon  his  person 
at  that  time  of  the  night,  visited  an  inn,  for  the  purpose  of  depositing  his 
money  for  safe-keeping;  found  the  inn  in  charge  of  a  night  clerk;  inquired 
if  he  could  have  lodging  for  the  night;  was  told  that  he  could;  stated  that 
he  did  not  desire  to  go  to  his  room  at  that  time,  but  wished  to  leave  some 
money  with  the  clerk,  and  would  return  in  about  half  an  hour.  The  clerk 
told  him  he  would  reserve  a  good  room  for  him.  He  did  not  register  his 
name.  It  was  not  upon  any  book  of  the  inn.  No  room  was  assigned  him. 
He  left  his  package  of  money  with  the  clerk,  received  a  check  for  it,  and 
departed.  He  returned  in  about  three  hours  to  have  a  room  assigned  him 
and  retire  for  the  balance  of  the  morning.     The  clerk  had  absconded  with 


§   49]  WHO    A.BB  OUESTa.  207 

Who  are  Transients. 

The  most  important  Idea,  probably,  in  determining  who  are  gncsLs, 
is  that  they  must  be  transients."  Other  terms  are  also  us.-d  by 
the  courts,  such  as  "traveler,"  or  "wayfarer,"  bnt  the  meaning  is  the 
same.  One  who  has  his  permanent  abode  in  the  place  is  not  a  guest." 
An  engineer  or  conductor,  who  follows  his  employment,  and  runs 
his  regular  trips,  stopping  over  at  each  end  of  his  route  either  at 
his  own  house  or  at  an  hotel,  is  neither  a  traveler,  a  wayfaring  man, 
nor  a  transient  person.  He  is  a  citizen  of  the  community  at  Ixjth 
ends  of  his  route.  The  fact  that  he  works  upon  a  train  which  runs 
30  miles  an  hour  does  not  make  him  a  traveler,  any  more  than  if 
he  worked  in  the  company's  shops.  If  he  goes  to  an  hotel,  and 
rents  a  room  by  the  month,  he  is  no  more  a  guest,  in  the  legal  sense 
which  fixes  the  liabilities  of  innkeepers,  than  if  he  were  a  mechanic 
in  the  shops,  or  a  permanent  citizen  of  the  place.^^  But  oflicers  of 
the  army  and  navy,  and  soldiers  and  sailors,  who  have  no  perma- 
nent residence  which  they  can  call  home,  may  well  be  regarded 
as  travelers  or  wayfarers  when  stopping  at  public  inns  or  hotels, 
and  to  make  them  chargeable  as  mere  boarders  it  should  be  shown 
satisfactorily  that  an  explicit  contract  had  been  made  which  de- 
prived them  of  the  privileges  and  rights  which  their  vocation  con- 
ferred upon  them  as  passengers  or  travelers.'* 

the  money.  Held,  W.  was  not  a  guest  of  the  inn  at  the  time  he  deposited 
his  money  with  the  clerk,  and  the  innkeeper  was  not  liable  for  its  loss. 
Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St.  32,  4  N.  E.  398. 

88  Jalie  V.  Cardinal.  35  Wis.  118;  Curtis  v.  Murphy,  G3  Wis.  4;  Munnlnj;  v. 
Wells,  9  Humph.  (Tenn.)  746;  Neal  v.  Wilcox,  4  Jones  (N.  0.)  146;  Horner 
V.  Harvey,  3  N.  M.  197,  5  Pac.  329;  Russell  v.  Fagan  (Del.)  8  Atl.  258;  Clufe 
v.  Wiggins,  14  Johns.  (N.  Y.)  175;  Beale  v.  Posey,  72  Ala.  323;  Burgess  v. 
Clements,  4  Maule  &  S.  300. 

S6  Ewart  v.  Stark,  8  Rich.  Law  (S.  C.)  423.  The  fact  that  au  hotel  has  a 
rule  to  charge  a  guest  a  less  rate  per  diem  by  the  week  tlian  by  the  <lay.  and 
that,  if  a  guest  had  been  there  longer  than  a  week,  he  got  the  beuellt  of  the 
rule,  does  not  show  that  one  who  had  been  at  the  hotel  more  than  a  week 
was  a  "boarder,"  rather  than  a  "guest."  It  not  being  shown  that  he  had  any 
notice  of  the  rule,  or  any  knowledge  of  the  charges,  or  that  any  arrangement 
for  a  permanent  stay  had  been  made.  Magee  v.  Pacific  Imp.  Co.,  OS  Cal.  678, 
83  Pac.  772. 

8  7  Horner  v.  Harvey,  3  N.  M.  197,  5  Pac  329. 

8  8  Hancock  v.  Rand.  94  N.  Y.  h 


268  INNKEEPERS.  [Ch.  6 

A  townsman  or  neighbor  may  be  a  traveler,  and  therefore  a  guest 
at  an  inn,  as  well  as  he  who  comes  from  a  distance,  or  from  a  foreign 
country.  If  he  resides  at  an  inn,  his  relation  to  the  innkeeper  is 
that  of  a  boarder;  but  if  he  resides  away  from  it,  whether  far  or 
near,  and  comes  to  it  for  entertainment  as  a  traveler,  and  receives 
it  as  such,  paying  the  customary  rates,  he  is  subjected  to  all  the 
duties  of  a  guest,  and  entitled  to  all  the  rights  and  privileges  of  one. 
In  short,  any  one  away  from  home,  receiving  accommodations  at  an 
inn  as  a  traveler,  is  a  guest,  and  entitled  to  hold  the  innkeeper  re- 
sponsible  as  such.'° 

The  Entertainment  Received, 

A  neighbor  or  friend  who  comes  to  an  inn  on  the  invitation  of  the 
innkeeper  is  not  deemed  a  guest.*"  It  is  not  the  fact  that  a  per- 
son does  or  does  not  take  lodgings  that  makes  him  a  guest.  It  is 
the  motive  with  which  he  visits  the  place, — whether  to  use  it,  even 
for  the  briefest  period  or  the  most  trifling  purpose,  as  a  public 
house  or  not.*^ 

One  need  not  be  entertained  at  an  inn  any  definite  length  of 
time  to  make  him  a  guest.*^  Thus,  it  has  been  held  that  even  the 
purchasing  of  liquor  was  sufficient,  under  some  circumstances,  to 
make  one  the  guest  of  the  innkeeper;  for  it  is  not  the  amount  of  re- 
freshments, but  the  character  under  which  the  purchaser  buys 
them,  which  determines  the  relation  of  the  parties.*^  Of  course,  a 
man  could  not  be  said  to  be  a  traveler  who  goes  to  a  place  merely 

8»  Curtis  V.  Murphy,  63  Wis.  4,  22  N.  W.  825;  Walling  v.  Potter,  35  Conn. 
183.  The  cases  are  numerous  where  persons  obviously  living  near  by  were 
held  guests,  thus:  A  driver  of  cattle  along  the  road,  in  Hilton  v.  Adams,  71 
Me.  19.  One  who  came  with  a  horse  and  wagon  to  attend  the  trial  of  a  case 
brought  against  him  by  the  innkeeper,  in  Read  v.  Amidon,  41  Vt.  15.  One 
who  came  to  market,  in  Bennet  v.  Mellor,  5  Term  R.  273.  So,  it  does  not  ap- 
pear that  the  party  was  a  traveler  in  Farnworth  v.  Packwood,  1  Starkie, 
249.  See,  also,  McDonald  v.  Edgerton,  5  Barb.  560;  Parker  v.  Flint,  12  Mod. 
254  (case  455);   Hancock  v.  Rand,  94  N.  Y.  1. 

40  Bac.  Abr.  "Inns  and  Innkeepers,"  5;  Comyn,  Dig.  "Action  on  Case  for 
Negligence,"  B,  2. 

*i  Read  v.  Amidon,  41  Vt.  15.     But  see  Lynar  v.  Mossop,  36  Q.  B.  U.  C.  230. 

42  Kopper  V.  Willis,  9  Daly  (N.  Y.)  460,  465. 

*3  McDonald  v.  Edgerton,  5  Barb.  (N.  Y.)  560,  562;  Fitch  v.  Casler,  17  Hun 
(N.  Y.)  126,  127. 


§    49]  WHO    ARE    GUESTS.  269 

for  the  purpose  of  taking  refreshment**  But  if  he  goes  to  an  inn 
for  refreshment  in  the  course  of  a  journey,  whether  of  business  or  of 
pleasure,  he  becomes  a  guest*"^  Thus,  in  Bonnet  v.  Mdlor,**  the 
plaintiff's  servant  took  the  goods  in  question  to  market  at  Man- 
.Chester,  and,  not  being  able  to  dispose  of  them,  he  brought  them 
to  the  defendant's  inn,  and  asked  the  defendant's  wife  if  he  could 
leave  them  there  until  the  next  market  day.  She  told  him  that  sIh- 
could  not  tell,  for  they  were  very  full  of  parcels.  The  8er\'ant  then 
sat  down  in  the  inn,  put  the  goods  on  the  floor  behind  liiin,  and  had 
some  liquor.  After  sitting  awhile,  he  arose,  and  found  that  th»' 
goods  were  missing.  On  this  state  of  facts,  the  jury  gave  a  ver- 
dict for  the  plaintiff;  and  the  court  sustained  the  verdict,  on  the 
ground  that  the  plaintiff's  sen^ant  had  become  and  was  the  guest 
of  the  defendant  at  the  time  when  the  goods  were  stolen. 

But  the  entertainment  must  be  given  by  the  innkeeper  in  that 
capacity.  So,  where  a  man  attends  a  ball  at  an  hotel,  at  the  invi- 
tation of  the  proprietor,  and  has  supper  and  stabling  for  his  lnjrse. 
and  buys  liquor  at  the  bar,  he  is  not  a  guest,  and  the  innkeeper  is  not 
liable  as  such  for  injuries  to  the  horse.* ^  a 

Consent  of  Innkeeper. 

No  perso^cgn  n^ake  himself  a  guest  without  the  innkeeper's  con 
senl,*^  Of  course,  that  consent  may  be  given  by  an  agent  or  a  serv 
ant  intrusted  with  the  duty  of  receiving  and  rejecting  travelers. 
There  need  be  no  formal  bargain,  for  the  acceptance  of  a  person  as 
a  guest  will  be  implied,  where  he  calls  for  refreshment  which  is  fur- 
nished to  him  by  a  servant  who  has  the  discretion  either  to  give  or 

**  Com.  V.  Moore,  145  Mass.  244;  Com.  v.  Hagan,  140  Mass.  2S9.  8  N.  E. 
207;  Reg.  v.  Rymer,  2  Q.  B.  Div.  3G;  Rex  v.  Llewellyn,  12  Mod.  445;  War- 
brooke  v.  Griffin,  2  Brown  &  G.  254. 

*8  Atkinson  v.  Sellers,  5  C.  B.  (N.  S.)  442,  443.  And  see  dictum  in  Curtis 
V.  Mui-phy,  63  Wis.  4,  22  N.  W.  825. 

*8  5  Term  R.  273.  For  comments  on  this  case,  see  Strauss  v.  County  Hotel 
&  Wine  Co.,  12  Q.  B.  Div.  27;  McDonald  v.  Edgerton,  5  Bai-b.  (N.  Y.)  500; 
Kopper  V.  Willis,  9  Daly  (N.  Y.)  4(;0,  405;  McDauiels  v.  Robinson,  20  Vt.  3U;. 
332. 

*T  Fitch  v.  easier,  17  Hun  (N,  Y.)  120.  To  the  same  effect  Is  Carter  t. 
Hobbs,  12  Mich.  52. 

*8  Gastenhofer  v.  Clair,  10  Daly  (N.  Y.)  205,  200;  Strauss  v.  County  Hotel  & 
Wine  Co.,  12  Q.  B.  Div.  27. 


270  INNKEEPERS.  [Ch.   6 

to  withhold  it.  But  a  man  cannot  make  himself  a  guest  by  slip- 
ping into  the  dining  room  of  an  hotel  and  ordering  a  dinner  of  a 
waiter  who  has  no  discretion  whatever,  and  who  brings  what  is  or- 
dered, under  the  belief  that  the  person  who  gives  the  order  is  in 
the  dining  room  by  permission  of  the  innkeeper.  Permission  to 
enter  the  dining  room  cannot  be  implied.  A  man  can  no  more  en- 
ter the  dining  room  without  permission  than  he  can  enter  a  sleep- 
ing room  and  go  to  sleep  without  permission.  He  must  first  give 
the  innkeeper  an  opportunity  to  receive  or  to  reject  him.  If  he  be 
accepted  as  a  guest,  he  is,  of  course,  entitled  to  the  usual  privileges 
of  a  guest.  One  who  go£s  to_an  inn  to  call  upon  a  guest  does_not 
by  so  doing  become  a  guest  himself.*' 

Leaving  Horse  at  Inn. 

Although  there  is  a  good  deal  of  confusion  in  the  cases,  it  is  be- 
lieved that  merely  leaving  a  horse  at  the  stables  of  an  inn  is  not 
sufficient  to  make  the  one  leaving  the  horse  a  guest.  The  rules  de- 
ducible  from  the  cases  seem  to  be  that  when  one  who  is  on  a  jour- 
ney stops  at  an  inn  to  obtain  food,  etc.,  for  his  horse,  though  he  re- 
ceives no  entertainment  himself,  he  becomes  a  guest.^**  So,  if  one 
who  intends  to  become  a  guest  of  an  inn  should  send  his  horse  there 
in  advance,  and  the  innkeeper  should  receive  him  on  that  under- 
standing, the  owner  of  the  horse  would  be  a  guest  from  that  time.^^ 
But  anything  less  would,  it  seems,  be  insufficient  to  establish  the 
relation  of  landlord  and  guest^^  Thus,  a  traveler  who  sends  his 
horse  to  an  inn  to  be  cared  for,  but  does  not  stop  at  the  inn  him- 
self, or  have  any  intention  of  so  doing,  does  not  become  a  guest. ^^ 

4  9  Gastenhofer  v.  Clair,  10  Daly  (N.  Y.)  265.  266.  Cf.  Kopper  v.  Willis.  9 
Daly  (N.  Y.)  460;    Bennet    v.  Mellor,  5  Term  R.  273. 

50  Mason  v.  Thompson,  9  Pick.  (Mass.)  280;  McDaniels  v.  Robinson,  26  Vt. 
316;  Thickstun  v.  Howard,  8  Blackf.  (Ind.)  535;  Russell  v.  Fagan  (Del.)  8 
Atl.   258. 

Bi  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485.  That  one  need  not  be  present  in 
person  at  an  inn  to  be  a  guest,  but  may  be  such  by  having  property  there  in 
charge  of  a  servant  or  agent,  see  Coykendall  v.  Eaton,  55  Barb.  (N.  Y.)  188. 

5  2  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485;  Ingallsbee  v.  Wood,  33  N.  Y.  577, 
579;  Healey  v.  Gray,  68  Me.  489;  Thickstun  v.  Howard,  8  Blackf.  (Ind.)  535; 
McDaniels  v.  Robinson,  26  Vt.  316. 

53  Healey  v.  Gray,  68  Me.  489;  GrinneU  v.  Cook,  3  Hill  (N.  Y.)  485;  Ingalls- 
bee V.  Wood,  33  N.  Y.  577. 


§    -"^^^l  WHO    ARE    QUESTS— SPKCIAL    AGUEEMENT.  271 

Much  less  would  one  not  a  traveler  acquire  the  rights  of  a  gwat 
by  using  the  stables  of  an  inn  as  a  mere  livery."  There  are  some 
cases  which  hold  that  the  mere  leaving  of  a  horse  at  an  iun  makes 
one  a  guest,"  but  it  is  believed  that  the  weight  of  authority  and 
the  tendency  of  modern  decisions  support  the  rules  as  stated  above, 
and  the  other  cases  do  not  seem  to  be  justifiable  on  principle. 

SAME— SPECIAL  AGREEMENT. 

60.  A  guest  does  not  lose  that  character  by  making  an 
arrangement  for  a  definite  time,  or  at  special  rates, 
provided  he  remains  a  transient. 

Neither  the  length  of  time  that  a  mau  remains  at  an  inn,  nor  any 
agreement  he  may  make  as  to  the  price  of  board  per  day,  or  per 
week,  deprives  him  of  his  character  as  a  traveler  and  a  guest,  pro 
vided  that  he  retains  his  status  as  a  traveler  in  other  respects." 
A  traveler  who  enters  an  inn  as  a  guest  does  not  cease  to  be  a 
guest  by  proposing  to  remain  a  given  number  of  days,  or  by  ascer- 
taining the  price  that  will  be  charged  for  his  entertainment,  or  by 
paying  in  advance  for  a  part  or  the  whole  of  the  entertainment,  or 
paying  for  what  he  has  occasion,  as  his  wants  are  supplied.  There 
is  no  reason  why  the  innkeeper  may  not  require  payment  iu  ad 

5*  McDaniels  v.  Robinson,  2G  Vt.  31G;  Giinnell  v.  Cook,  3  Hill  (.\.  Y.)  4S5: 
ThicliStun  v.  Howard,  8  Blackf.  (lud.)  535;  Hickman  v.  Tbonias,  Hi  Ala.  (J<jG: 
Russell  V.  Fagan  (Del.)  8  Atl.  2.58. 

65  The  case  of  York  v.  Grindstone,  1  Salk.  388,  is  underetood  as  deciding, 
by  a  divided  court,  that  one,  by  leaving  his  horse  at  an  inn,  becomes  a  >;ue8t. 
And  such  was  virtually  the  decision,  inasmuch  as  defendant's  lien  as  inn- 
keeper was  recognized,  in  regard  to  a  horse  left  at  his  stable  by  a  traveler 
who  did  not  himself  put  up  at  the  inn.  And  such  lien  does  not  exist  as  to 
horses  put  up  at  the  stable  of  an  innkeeper,  by  those  who  are  not  trav- 
elers and  guests.  See  ante,  p.  222.  And  see  same  case,  as  Yorke  v.  Gren- 
augh,  2  Ld.  Raym.  8G6;  Mason  v.  Thompson,  9  Pick.  (Mass.)  280;  Peet  v. 
McGraw,  25  Weud.  (N.  Y.)  G.j3,  G54;    McDaniels  v.  Robinson.  2G  Vt.  31G,  332. 

oBNorcross  v.  Norcross,  53  Me.  169;  Hancock  v.  Rand.  94  N.  Y.  1;  Mum  v. 
Dwinelle,  7  Alb.  Law  J.  44;  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  417; 
Hall  V.  Pike,  100  Mass.  495;  Walling  v.  Potter,  35  Conn.  183.  185;  Richmond 
V.  Smith,  8  Barn.  &  C.  9,  11;  Kisten  v.  Hildebrand.  9  B.  Mon.  (Ky.)  72;  Par 
ker  V.  Flint,  12  Mod.  254,  255;   Allen  v.  Smith,  12  C.  B.  (N.  S.)  G38. 


272  INNKEEPERS.  [Ch.  6 

vance,  or  why  the  guest  may  not  pay  in  advance,  for  lodgings  for  a 
part  or  all  the  time  he  intends  to  remain  as  a  guest  at  the  inn.^^  A 
guest  for  a  single  night  might  make  a  special  contract  as  to  the 
price  to  be  paid  for  his  lodging,  and,  whether  it  were  more  or  less 
than  the  usual  price,  it  w^ould  not  affect  his  character  as  a  guest. 
The  character  of  guests  does  not  depend  upon  the  payment  of  any 
particular  price,  but  upon  other  facts.^'  If  an  inhabitant  of  a  place 
makes  a  special  contract  with  an  innkeeper  there,  for  board  at  his 
inn,  he  is  a  boarder,  and  not  a  traveler  or  a  guest,  in  the  sense  of 
the  law.'*'*  The  cases  show  that,  to  entitle  one  to  the  privileges  and 
protection  of  a  guest,  he  must  have  the  character  of  a  traveler, — 
one  who  is  a  mere  temporary  lodger, — in  distinction  from  one  who 
engages  for  a  fixed  period  at  a  certain  agreed  rate.  The  main  testjs 
that  a  guest  must  be  a  wayfarer,  or  transient,  and  it  matters  not 
how  long  he  rciiiains,  provided  he  retains  this  character."" 

The  distinction  between  a  guest  and  a  boarder,  and  the  liabilities 
of  an  innkeeper  to  each,  were  well  illustrated  in  Lusk  v.  Belote.®^ 
The  plaintiff's  wife  and  children  became  inmates  of  defendant's  ho- 
tel, in  St.  Paul,  in  August,  and  remained  there  until  the  next  Octo- 

8T  Pinkerton  v.  Woodward,  33  Cal.  557. 

58  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  (Mass.)  417,  424;  Hall  v.  Pike, 
100  Mass.  495,  498;  Neal  v.  Wilcox,  4  Jones  (N.  C.)  146,  148;  Bennet  v.  Mellor, 
5  Term  R.  273. 

59  Berkshire  Woolen  Co.  v.  Proctor,  supra;  Carter  v.  Hobbs,  12  Mich.  52; 
Shoecraft  v.  Bailey,  25  Iowa,  553;  Pollock  v.  Landis,  36  Iowa,  651;  Manning 
V.  Wells,  9  Humph.  (Tenn.)  746;  Kisten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72, 
75;  Hancock  v.  Rand,  94  N.  Y.  1;  Lawrence  ^.  Howard,  1  Utah,  142;  Park- 
hurst  V.  Foster,  1  Salk.  388;  Parker  v.  Flint,  12  Mod.  254.  And  see  Cham- 
berlain V.  Masterson,  26  Ala.  371;  Ewart  v.  Stark,  8  Rich.  (S.  C.)  423;  Hursh 
V.  Byers,  29  Mo.  469. 

60  Clute  V.  Wiggins,  14  Johns.  (N.  Y.)  175;  Curtis  v.  Murphy,  63  Wis.  4,  22 
N.  W.  825;  Lusk  v.  Belote,  22  Minn.  468;  Ewart  v.  Stark,  8  Rich.  (S.  C.)  423; 
Vance  v.  Throckmorton,  5  Bush  (Ky.)  41,  44;  Kisten  v.  Hildebrand,  9  B.  Mon. 
(Ky.)  72;  Hancock  v.  Rand,  94  N.  Y.  1;  Johnson  v.  Reynolds,  3  Kan.  251. 
In  Hall  v.  Pike,  100  Mass.  495,  a  mechanic  living  in  Boston  was  employed 
on  a  building  in  Cambridge  (which  is  practically  a  part  of  Boston),  and  gave 
up  his  boarding  house  in  Boston,  and  went  to  the  house  of  defendant  Ar- 
ticles were  stolen  from  his  room,  and  he  sued,  not  alleging  negligence,  but 
as  guest,  and  he  recovered. 

•  1  22  Minn.  468. 


§    51]  COMMENCEMENT    OF    RELATION.  273 

ber.  At  the  time  they  came  to  the  hotel,  the  wife  and  childnn 
had  been  living  >n  St."  Paul  for  three  or  four  years,  sometimes  koop- 
ing  house,  sometimes  staying  at  an  hotel  or  boarding  house;  the 
plaintiff,  who  was  not  a  resident  of  the  state,  visiting  them  two  or 
three  times  a  year.  He  came  to  the  hotel  on  the  10th  of  Septem 
ber,  and  remained  about  four  weeks.  There  was  an  agreenn'nt  for 
special  rates  for  himself  and  his  family,  lower  than  ti'ansi<Mit  rates. 
On  the  20th  of  September,  the  watch  of  the  plaintiff  and  jewelry  of 
the  children  were  stolen  from  the  hotel.  It  was  held  that  the 
plaintiff  was  a  traveler,  but  the  children  were  not,  and  the  defend- 
ant was  liable  for  the  watch,  but  not  for  the  jewelry.  The  court 
says,  in  substance:  This  strict  liability  exists  only  in  favor  of 
travelers.  As  to  the  family,  they  must  be  regarded  as  in  fact 
dwellers  in  and  inhabitants  of  St.  Paul.  They  certainly  were  not 
travelers,  in  any  just  sense  of  the  word.  As  to  the  husband,  he 
was  received  there  as  a  traveler,  and  in  no  other  character.  His 
status  as  a  traveler,  like  any  other  status,  once  shown  to  exist,  is 
to  be  presumed  to  have  continued.  Neither  the  agreement  by 
which  he  was  to  pay  special  rates  for  himself  and  family,  lower  than 
those  ordinarily  charged  for  transient  guests,  nor  the  fact  that  h.- 
remained  in  the  inn  for  a  month,  furnish  any  evidence  that  his 
character  was  changed  from  that  of  a  traveler  to  that  of  a  boarder.*^ 

COMMENCEMENT  OF  RELATION. 

51.  The  relation  of  innkeeper  and  guest  begins  when  the 
guest  is  received  as  such. 

When  a  person  applies  to  an  innkeeper  for  entertainment,  and 
Is  accepted  by  the  innkeeper,  he  becomes  a  guest  immediately.  It 
was  said  in  a  Vermont  case  *"*  "that  taking  a  room  is  the  decisive  act 
to  create  the  relation.      That  being  done,  the  guest  is  charged,  as 

«2  See,  also,  as  to  distinction  between  guests  and  boarders.  Stewart  v.  Mc- 
Cready,  24  How.  Prac.  (N.  Y.)  62;  Jeffords  v.  Cinimp,  12  Pbila.  (Pa.)  500; 
Centlivre  v.  Ryder,  1  Edm.  Sol.  Cas.  'N.  Y.)  273;  Hilton  v.  Adams.  71  Mo. 
19;    Wbitemore  v.  Haroldson,  2  Lea  (Tenn.)  312. 

68  McDaniels  v.  Robinson,  26  Vt.  316,  324.  And  see,  as  giving  color  to  thitt 
view,  Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St.  32,  4  N.  E.  898. 

LAWBAILM. — 18 


274  INNKEEPERS.  [Ch.  6 

such,  for  his  meals  and  lodging,  whether  he  take  them  at  the  inn 
or  with  his  friends,  as  any  one  may  know  who  has  had  experience 
in  such  matters."  However,  it  is  clear,  from  what  has  been  said  in 
discussing  who  are  guests,  that  one  need  not  be  assigned  a  room  to 
create  the  relation.®*  The  application  for  entertainment  may  be, 
and  in  fact  often  is,  implied  from  the  conduct  of  the  person  making 
the  application,  and  he  may  be  received  as  a  guest  in  the  same 
way.  The  actual  assent  of  the  innkeeper  to  receiving  the  guest  is 
not  necessary;  it  may  be  given  by  an  employ^  or  agent  authorized 
to  do  so.®" 

BIGHTS  AND  LIABILITIES  OF  INNKEEPERS. 

52.  The  rights  and  liabilities  of  an  innkeeper  will  be  con- 
sidered under  the  following  heads: 

(a)  Duty  to  receive  guests  (p.  274). 

(b)  Liability  for  guests'  goods  (p.  277). 

(c)  Liien  on  guests'  goods  (p.  293). 

SAME— DUTY  TO  RECEIVE  GUESTS. 

63.  An  innkeeper  is  bound  to  receive  as  guests  all  reputa- 
ble persons  w^ho  come  in  proper  condition,  and  are 
willing  and  able  to  pay  for  their  entertainment,  so 
long  as  he  has  accommodations  for  them. 

An  innkeeper  holds  out  his  house  as  a  public  place  to  which  trav- 
elers may  resort,  and  of  course  surrenders  some  of  the  rights  which 
he  would  otherwise  have  over  it.®*     Holding  it  out  as  a  place  of  ac- 

«*  Since  merely  buying  liquor  has,  as  we  have  seen,  been  held  sufficient  to 
make  one  a  guest.  Koppep  v.  Willis,  9  Daly  (N.  Y.)  460;  McDonald  v.  Edg- 
erton,  5  Barb.  (N.  Y.)  560;  Fitch  v.  Casler,  17  Hun  (N.  Y.)  126,  127;  Atkin- 
son V.  Sellers,  5  C.  B.  (N.  S.)  442,  448;   Bennet  v.  Mellor,  5  Term  R.  273. 

8  5  Gastenhofer  v.  Clair,  10  Daly  (N.  Y.)  265;  Pinkerton  v.  Woodward,  83 
Cal.  557. 

66  The  ground  upon  which  these  restrictions  are  imposed  is  that  persons 
engaged  in  this  vocation  are  in  some  sense  servants  of  the  public,  and  in 
conducting  their  business  they  exercise  a  privilege  conferred  upon  them  by 
the  public,  and  they  have  secured  to  them  by  the  law  certain  privileges  and 


§    53]  RIGHTS    AND    LIABILITIES DUTY    TO    RBCKIVE    QUESTa.  275 

commodation  for  travelers,  he  cannot  prohibit  persons  who  come 
under  that  character,  in  a  proper  manner,  and  at  suitable  tlmeR, 
from  entering,  so  long  as  he  has  the  means  of  accommodation  for 
them.«''  But  he  is  not  obliged  to  make  his  house  a  common  re- 
ceptacle for  all  comers,  whatever  may  be  their  character  or  condi 
tion.  He  is  not  obliged  to  receive  one  who  is  not  able  to  pay  foi- 
his  entertainment,^^  and  there  are  considerations  of  greater  im 
portance  than  this.  He  is  indictable  if  he  usually  harljor  thieves, 
i*nd  is  not  bound  to  admit  one  whose  notorious  character  as  a  thief 
furnishes  good  reason  to  suppose  that  he  will  purloin  the  goods  or 
money  of  his  guests.^^  So,  he  is  liable  if  his  house  is  disorderly, 
and  cannot  be  held  to  wait  until  an  affray  is  begun  before  he  in 
terposes,  but  may  exclude  common  brawlers,  and  any  one  who  comes 
with  intent  to  commit  an  assault  or  make  an  affray.^"  So  he  may 
prohibit  the  entry  of  one  whose  misconduct  in  other  particulars,  or 
whose  filthy  condition,  would  subject  his  guests  to  annoyance." 

rights  which  are  not  enjoyed  by  the  members  of  the  public  jjenerally.  Ii<">w- 
lin  v.  Lyon,  67  Iowa,  536,  25  N.  W.  706.  And  cf.  Beale  v.  Posey,  72  Ala.  :V23. 
330. 

«T  Kirkman  v.  Shaweross,  6  Term  K.  14,  17;  Rex  v.  Ivens,  7  Car.  &  P.  '2\:i. 
That  he  cannot  refuse  accommodation  to  an  infant  or  a  married  woman  trav- 
eling alone,  see  Watson  v.  Cross,  2  Duv.  (Ky.)  147.  In  a  note  to  Walling'  v. 
Potter,  9  Am.  Law  Reg.  (N.  S.)  618,  it  is  said  that  an  innkeeper  la  not  bound 
to  receive  a  townsman,  but  no  authority  is  given  for  the  statement  Thei)oiut 
does  not  seem  to  have  come  up  for  decision.  An  Innkeeper  is  not  bound  to 
receive  and  keep  horses  or  other  property  of  a  person  who  is  neiilier  u 
traveler  nor  a  guest.     Grinnell  v.  Cook,  3  Hill  (N.  Y.)  4S5. 

68  Thompson  v.  Lacy,  3  Bam.  &  Aid.  283,  286;  Watson  v.  Cross.  2  Duv. 
147;  Pinkerton  v.  Woodward,  33  Cal.  557;  Grinnell  v.  Cook,  3  Hill  (N.  Y.) 
485.  The  price  of  accommodation  need  not  be  tendered  unless  It  is  demand- 
ed or  the  refusal  to  receive  is  on  that  ground.  Rex  v.  Ivens,  7  Car.  &  P.  213. 
But  see  FeU  v.  Knight,  8  Mees.  &  W.  269,  276. 

89  Markham  v.  Brown,  8  N.  H.  523,  528;  1  Hawk.  P.  C.  c.  78.  t  1;  Hac. 
Abr.  "Inns,"  A. 

TO  Markham  v.  Brown,  8  N.  H.  523,  528;  1  Hawk.  P.  C.  c.  78.  J  1.  But  It 
has  been  held  that  an  innkeeper  is  not  justified  In  refusing  to  receive  a 
militiaman  merely  because  other  membei-s  of  the  same  company  wbo  wore 
then  guests  had  not  conducted  themselves  In  a  proper  manner.  Atwuter  t. 
Sawyer,  76  Me.  539. 

71  Markham  v.  Brown,  8  N.  H.  523,  528;  Phikerton  v.  Woodward,  33  C*L 
657;   Thompson  v.  Lacy,  3  Bam.  &  Aid.  283.     As  to  an  Innkeepers  duly  to 


276  INNKEEPERS.  [Cb.  6 

He  has  a  right  to  prohibit  common  drunkards  and  idle  persons  from 
entering,  and  to  require  them,  and  others  before  mentioned,  to  de- 
part, if  they  have  already  entered.'^"  And  any  person  entering, 
not  for  a  lawful  purpose,  but  to  do  an  unlawful  act, — as  to  com- 
mit an  assault  upon  one  lawfully  there, — must  be  deemed  a  tres- 
passer in  entering  for  such  unlawful  purpose/* 

As  he  is  bound  to  admit  travelers,  under  certain  limitations,  he 
may  likewise  be  held,  under  proper  limitations,  to  admit  those  who 
have  business  with  them  as  such.  This  may  be  considered  as  de- 
rived from  the  right  of  the  traveler.^*  It  is  conceded  that  he  may 
be  bound  to  permit  the  entry  of  persons  who  have  been  sent  for 
by  the  guest.  But  the  rule  is  not  to  be  limited,  in  all  cases,  to  this. 
There  may  be  such  connection  between  travelers  and  those  engaged 
in  their  conveyance  that  the  latter,  although  not  specially  sent  for, 
may  have  a  right  to  enter  a  common  inn;  or  such  that  the  land- 
lord, if  he  give  a  general  license  to  some  of  those  whose  business  is 
connected  with  his  guests,  in  their  character  as  travelers,  cannot 
lawfully  exclude  others,  pursuing  the  same  business,  and  who  enter 
for  a  similar  object.^"  There  seems  to  be  no  good  reason  why  the 
landlord  should  have  the  power  to  discriminate  in  such  cases,  and 
to  say  that  one  shall  be  admitted  and  another  excluded,  so  long  as 
each  has  the  same  connection  with  his  guests,  the  same  lawful  pur- 
pose, comes  in  a  like  suitable  condition,  and  with  as  proper  a  de- 
meanor, any  more  than  he  has  the  right  to  admit  one  traveler 

receive  one  who  comes  with  dogs,  and  insists  on  their  being  admitted  to  the 
Inn,  see  Reg.  v.  Rymer,  2  Q.  B.  Div,  136. 

T2  Com.  V.  Mitchel,  2  Pars.  Eq.  Cas.  (Pa.)  431;  Howell  v.  Jackson,  6  Car. 
&  P.  723;  Moriarty  v.  Brooks,  Id.  684;  Rex  v,  Ivens,  7  Car.  &  P.  213.  And 
see  Com.  v.  Power,  7  Mete.  (Mass.)  596;   McKee  v.  Owen,  15  Mich.  115. 

T8  Markham  v.  Brown,  8  N.  H.  523. 

T*  Com.  v.   Mitchel,  2  Pars.  Eq.  Cas.  (Pa.)  431. 

7  5  Markham  v.  Brown,  8  N.  H.  523,  529.  A  regulation  made  by  an  inn- 
keeper that  proprietors  of  livery  stables,  and  their  agents  or  servants,  shall 
not  be  allowed  to  enter  his  hotel  for  the  pui-pose  of  soliciting  patronage  for 
their  business  from  his  guests,  is  a  reasonable  one;  and,  after  notice  to  de- 
part, a  person  violating  it  may  be  lawfully  expelled  from  the  house,  if  ex- 
cessive force  is  not  used  in  ejecting  him.  State  v.  Steele,  106  N.  C.  766,  11 
S.  E.  478.    Of.  "Carriers,"  post,  p  506.    . 


§    54]  RIGHTS  AND  LIABILITIKS LIABILITY  FOB  QUBSTs'  OOODfl.  277 

and  exclude  another,  merely  because  It  is  his  pleasure/*  If  one 
comes  to  injure  his  house,  or  if  his  business  operates  directly  as 
an  injury,  that  will  alter  the  case."  And  perhaps  there  may  be 
cases  in  which  he  may  have  a  right  to  exclude  ;ill  but  travelers  and 
those  who  have  been  sent  for  by  them,^* 

An  innkeeper  who  has  an  inn  stable  is  under  the  same  obligation 
to  receive  and  care  for  horses  as  he  is  to  receive  the  pt-rsoii  to  whom 
they  belong.'^  A  landlord  is  not  bound  to  provide  for  a  guest  tlie 
precise  room  the  latter  may  select^"  All  the  law  requires  him  to 
do  is  to  find  for  his  guests  reasonable  and  proper  accommodations.*" 
For  an  improper  refusal  to  receive  a  person  as  a  guest,  on  Inn 
keeper  is  liable  to  a  civil  action  by  the  person  aggi-ieved." 


SAME— LIA.BILITY  FOB  GUESTS'  GOODS. 

64.  At  common  la-w  an  innkeeper  is   liable  as  an  insurer 
of  his  guest's  goods,  unless  they  are  lost — 

(a)  By  accidental  fire  (p.  280). 

(b)  By  act  of  God  or  a  public  enemy  (p.  281). 

(c)  By  reason  of  inherent  nature  (p.  281). 

(d)  Through  fault  of  the  guest,  or  his  servant  or  compan- 

ion (p.  282). 

T6  While  they  have  the  right,  doubtless,  to  make  reasonable  and  proper 
rules  for  the  conduct  of  the  business  in  which  they  are  engaged,  tbey  are  not 
permitted  to  discriminate  in  favor  of  or  against  any  class.  Markhaiu  v. 
Brown.  8  N.  H.  523. 

TT  See  Jencks  v.  Coleman,  2  Sumn.  221,  Fed.  Cas.  No.  7,258. 

T8  Markham  v.  Brown,  8  N.  H.  523,  529. 

T»  Schouler,  Ballm.  288;   Bac.  Abr.  "Inns,"  etc.,  c.  3. 

8  0  Fell  v.  Knight,  8  Mees.  &  W.  269. 

81  Fell  V.  Knight,  8  Mees.  &  W.  269.  There  are  some  dicta  to  the  effect  tljat 
an  innkeeper  is  not  bound  to  convert  his  Inn  Into  a  warehouse,  and  is  only 
l)ound  to  receive  such  goods  of  his  gue.sts  as  his  inn  will  conveniently  nccom 
modate.  Needles  v.  Howard,  1  B.  D.  Smith  (N.  Y.)  54,  61.  And  see  Neal  ▼ 
WUcox,  4  Jones  (N.  C.)  146. 

82  Watson  V.  Cross,  2  Duv.  (Ky.)  147,  148.  As  to  the  civil  rights  act.  se« 
Black,  Const.  Law,  406;  The  Civil  Rights  BUI,  1  Hughes,  541,  Fad.  Cos.  No. 
2,774. 


278  INNKEEPEBS.  [Ch.  6 

There  Is  an  almost  hopeless  conflict  in  the  rules  laid  down  by 
the  eonrts  and  text  writers  as  to  the  correct  rule  of  an  innkeep- 
er's liability  for  the  goods  of  a  guest  lost  while  in  his  custody  as 
innkeeper.*^  This  conflict,  however,  is  rather  in  the  dicta  of  the 
courts  than  in  the  decisions  themselves.  There  are,  in  general, 
three  distinct  views  as  to  this  liability,  which  have  been  aptly  called 
"the  doctrines  of  prima  facie  liability,  superior  force,  and  strict  in- 
surance." These  views  are  well  stated  in  Sibley  v.  Aldrich,**.a8 
follows:  "Three  different  rules  appear  to  be  laid  down  on  this  sub- 
ject in  different  authorities:  (1)  That  the  innkeeper  is  prima  facie 
liable  for  the  loss  of  goods  in  his  charge,  but  may  discharge  him- 
self by  showing  that  the  goods  were  lost  without  his  negligence 
or  default.  *  *  *  (2)  That  the  innkeeper  is  discharged  by 
showing  how  the  accident  happened,  and  that  it  happened  by  in- 
evitable accident  or  irresistible  force,  though  the  accident  might 
not  amount  to  what  the  law  denominates  the  act  of  God,  and  the 
force  might  not  be  the  power  of  a  public  enemy.  *  *  *  (3)  That 
the  innkeeper  is  liable  unless  the  loss  was  caused  by  the  act  of  G-od 
or  the  public  enemy,  or  by  the  fault,  direct  or  implied,  of  the  guest.'" 

The  prima  facie  view  is  stated  by  Mr.  Story  *'  as  follows:  "Inn- 
keepers are  not  responsible  to  the  same  extent  as  common  carriers. 
The  loss  of  the  goods  of  a  guest  while  at  an  inn  will  be  presumptive 
evidence  of  negligence  on  the  part  of  the  innkeeper  or  of  his  do- 
mestics. But  he  may,  if  he  can,  repel  this  presumption,  by  show- 
ing that  there  has  been  no  negligence  whatsoever,  or  that  the  loss  is 
attributable  to  the  personal  negligence  of  the  guest  himself,  or  that 
it  has  been  occasioned  by  Inevitable  accident  or  by  superior  force.'' 
So,  in  Howth  v.  Franklin,*^  Roberts,  J.,  said  for  the  court:  *^When 
property  committed  to  the  custody  of  an  innkeeper  by  his  guest  is 
lost,  the  presumption  is  that  the  innkeeper  is  liable  for  it,  and  he 
can  relieve  himself  from  that  liability  by  showing  that  he  has  used 
extreme  diligence.  What  facts  will  excuse  him  is  a  question,  per- 
haps, not  ver}'  well  settled,  but  it  is  well  settled  that  he  cannot  ex- 

88  McDaniels  v.  Robinson,  28  Vt  316;   Merrltt  v.  Claghorn,  23  Vt  177;   Cut- 
ler V.  Bonney,  30  Mich.  259. 
8*33  N.  H.  553. 
8  5  Bailm.  472. 
86  20  Tex.  79a 


§    54]  RIGHTS  A-ND  LIABILITIES LIABILITY  FOB  QOBSTS'  OOODf.  279 

cuae  himself  without  showing  that  he  has  used  extreme  care  and 
diligence  in  relation  to  the  property  lost."  '* 

The  second  view,  or  that  of  superior  force,  is  stated  In  McDanlels 
T.  Robinson,"  where  Redfield,  C.  J.,  said  for  the  court:  "In  Rich- 
mond V.  Smith,'"  Lord  Tenterden  says,  in  regard  to  goods  stolen 
from  the  custody  of  an  innkeeper,  'The  situation  of  an  Innkeeper  is 
precisely  analogous  to  that  of  a  carrier.'  This  may  be  too  strongly 
expressed,  if  applied  to  all  cases  of  goods  taken  from  the  custody 
of  an  innkeeper.  For  it  may  be  done  by  superior  force,  and  with 
out  his  fault,  and  still  not  the  force  of  a  public  enemy,  which  is  nec- 
essary to  be  shown  to  excuse  a  common  carrier.  But,  in  regard  to 
goods  stolen  from  the  custody  of  an  innkeeper,  and  no  evidence  to 
show  how  it  was  done,  or  by  whom,  the  liability  is  the  same  as  that 
of  a  carrier."  '° 

Under  the  doctrine  of  strict  insurance,  innkeepers  are  under  the 
same  liability  as  common  carriers.  They  are  insurers  of  the  prop- 
erty of  their  guests  committed  to  their  care,  and  are  liable  for  its 
loss,  unless  caused  by  the  act  of  God,  a  public  enemy,  or  the  neg- 
lect or  fault  of  the  owner  or  his  servants.  This  strictness  of  lia- 
bility, it  is  said,  is  necessary,  in  order  to  protect  travelers  against 
any  collusion  between  the  innkeeper  and  his  servants,  and  to  com- 
pel him  to  take  care  that  no  improper  persons  be  admitted  into  his 
house.  His  charge  for  the  entertainment  of  his  guests  is  supposed 
to  cover  this  risk,  and  he  also  has  a  lien  upon  their  property  in- 
trusted to  his  care,  to  indemnify  him  against  loss.  Upon  proof  of 
loss,  the  burden  of  bringing  the  case  within  the  exceptions  to  his 

8T  Citing  Edwards,  Bailm.  406;  2  Kent,  CJomm.  592.  See.  also,  Dawson  t. 
Chamney,  5  Q.  B.  l&i;  Metcalf  v.  Hess,  14  IlL  129;  Johnson  v.  Richard- 
son, 17  lU.  302;  Laird  v.  Eichold,  10  Ind.  212;  McDaniels  v.  Robinson.  28 
Vt  316;  Russell  v.  Fagan  (Del.)  8  Atl.  258,  259;  Kisten  v.  Hlldebrand.  9  B. 
Mou.  (Ky.)  72;  Baker  v.  Desaiutr,  49  Ind.  28;  Howe  Mach.  Co.  v.  Vease.  49 
Vt  477;  Howth  v.  Franklin,  20  Tex.  79S;  Duubier  v.  Day.  12  Xeb.  SIHJ.  12 
N.  W.  109. 

«8  26  Vt.  316. 

»»  8  Bam.  &  C.  9. 

90  And  see  Merritt  v.  Claghorn.  23  Vt  177:  Metcalf  r.  Hess.  14  ni.  129; 
Johnson  v.  Richardson,  17  111.  302;  Howth  v.  FrankUn.  20  Tex.  798;  McDan- 
lels V.  Robinson,  26  Vt.  316:  Kisten  v.  HUdebrand.  9  B.  Mon.  (Ky.)  72; 
Woodworth  V.  Morse.  IS  La.  Ann.  156;   CuUer  v.  Bonney.  30  Mich.  259. 


280  INNKEEPERS.  [Ch.   6 

liability  is  upon  the  innkeeper;  and  proof  of  tlie  strictest  care  on 
his  part  avails  him  nothing,  if  it  falls  short  of  this.®^ 

Accidental  Fires. 

On  principle,  the  rule  of  strict  insurance  seems  to  he  most  con- 
sistent with  the  theory  on  which  an  exceptional  liability  is  imposed 
on  innkeepers.  But  it  is  doubtful  if  this  is  sustained  by  the  cases; 
for  it  is  held,  by  the  weight  of  authority,  that  an  innkeeper  is  not 
liable  for  goods  of  a  guest  which  are  destroyed  by  an  accidental 
Are, — that  is,  by  a  fire  which  the  innkeeper  shows  was  in  no  way 
caused  by  his  own  negligence  or  that  of  his  servants.^*  The  con- 
trary was  held  in  New  York,  in  Hulett  v.  Swift ;^^  but  a  statute  was 
passed  soon  after,  exempting  innkeepers  from  liability  for  such 
fires.°*  And  so,  by  statutes  in  a  number  of  states,  innkeepers  are 
answerable  to  their  guests,  in  case  of  loss  by  fire,  only  for  ordinary 
and  reasonable  care  in  the  custody  of  their  baggage  or  other  prop- 
erty.®"    And  an  action  cannot,    in    these    states,    be    maintained 

»i  See  Shaw  v.  Berry,  31  Me.  479;  Mason  v.  Thompson,  9  Pick.  (Mass.)  280; 
Hulett  V.  Swift,  33  N.  Y.  571;  Sibley  v.  Aldrieh,  33  N.  H.  553;  Duubier  v. 
Day,  12  Neb.  596,  12  N.  W.  109;  Morgan  v.  Ravey,  6  Hurl.  &  N.  265;  Grin- 
nell  V.  Cook,  3  Hill  (N.  Y.)  4S5;  Burgess  v.  Clements,  4  Maule  &  S.  306;  Rich- 
mond V.  Smith,  8  Barn.  &  C.  9;  Kent  v.  Shuckard,  2  Barn.  &  Adol.  803; 
Armistead  v.  White,  0  Eng.  Law  &  Eq.  349,  Mateer  v.  Brown,  1  Cal.  221; 
Norcros8  v.  Norcross,  53  Me.  163;  Burrows  v.  Trieber,  21  Md.  320;  Manning 
V.  Wells,  9  Humph.  (Teuu.)  116:  Thickstun  v.  Howard,  8  Blackf.  (Ind.)  535, 
537;  Sasseeu  v.  Clark,  37  Ga.  242;  Purvis  v.  Coleman,  21  N.  Y.  Ill,  112,  117; 
Gile  V.  Libby,  30  Barb.  70,  74;  lugalsbee  v.  Wood,  36  Barb.  452,  458;  Wash- 
bum  V.  Jones,  14  Barb.  193,  195;  McDonald  v.  Edgerton,  5  Barb.  500,  o&i; 
Taylor  v.  Monnot,  4  Duer,  116;  Stanton  v.  Leland,  4  E.  D.  Smith,  SS,  34; 
Piper  V.  Manny,  21  Wend.  282,  284;  Clute  v.  Wiggins,  14  Johns.  175;  Berk- 
shire Woolen  Co.  v.  Proctor,  7  Cush.  417,  427;  Towson  v.  Havre  de  Giace 
Bank,  6  Har.  «&  J.  47;  Kisten  v.  Hildebrand,  9  B.  Mou.  (Ky.)  72;  1  Smith, 
Lead.  Gas.  (Hare  &  W.  notes)  307. 

»2  Cutler  V.  Bonney,  30  Mich.  259;  Merritt  v.  Claghorn,  23  V"t  177.  And 
see  Vance  v.  Throckmorton,  5  Bush,  42;   Mowers  v.  Fethers,  61  N.  Y.  34. 

8  3  33  N.  Y.  571. 

»*  See  Faucett  v.  Nicholls,  64  N.  Y.  377. 

9  6  New  York,  Laws  1806,  c,  658;  Wisconsin,  Sanb.  &  B.  Ann.  St  1889, 
g  1726;  Missouri,  Rev.  St.  1889,  §  5512;  Massachusetts,  Pub.  St  c.  102,  §  15, 
Maine,  Rev.  St  1SS3,  c.  27,  §  6.    1  Stim.  Am.  St  Law,  §  4392. 


§    54]  RIGHTS  A.\D  LIABILITIES LIABIIITY  FOR  QUMTs'  GOOD*.  281 

against  an  innkeeper  for  such  a  loss,  when  there  is  no  proof  of 
want  of  such  ordinary  and  reasonable  care." 
Loss  by  Robbery. 

So,  too,  where  the  question  of  an  innkeeper^s  liability  for  goodw 
lost  by  robbery  has  come  squarely  before  the  court,  there  has  been 
in  each  case  some  circumstance  which  the  court  regarded  as  neg- 
ligence on  the  part  of  the  innkeeper,  and,  though  he  has  been  held 
liable  in  each  instance,^^  these  decisions  cannot  be  cited  with  con- 
fidence, as  sustaining  the  proposition  that  the  innkeeper  would 
be  responsible  for  goods  so  lost,  in  the  absence  of  any  negligence; 
nor,  on  the  other  hand,  has  any  reported  case  been  found  wiiicli 
has  held  an  innkeeper  not  liable."^ 

Act  of  God  or  a  Public  Enemy. 

Although  no  cases  seem  to  have  arisen  where  an  innkeeper's  liii 
bility  for  property  lost  by  act  of  God  or  a  public  enemy  has  been 
in  question,  there  is  no  reason  for  supposing  he  would  be  liable  lu 
such  cases,  since  a  common  carrier  is  not.°^ 

Inherent  Nature — Injuries  to  Hoi'ses. 

If  a  horse  becomes  suddenly  diseased,  or  if  fruits  perish  in  the 
package  as  delivered  to  the  landlord,  the  natural  presumption  is 
that  this  condition  occurred  in  the  due  course  and  order  of  things, 
and  from  the  inherent  qualities  of  the  property;  and  the  innkeeper 
is  not  liable.^°°  That  is,  when  a  guest  puts  a  horse  in  the  stables 
of  the  inn,  and  the  horse  dies  from  causes  for  which  the  innkeeper 
is  in  no  way  responsible,  then  the  latter  is  not  liable  for  the  loss,'*" 
But  when  the  loss  does  not  arise  from  the  inherent  nature  of  the 
animal  the  inkeeper  is  liable.'"^'     The  death  or  injury  while  in 

»8  Bumham  v.  Young,  72  Me.  273. 

97  Pinkerton  v.  Woodward,  33  Cal.  557;  Woodward  v.  Birch.  4  Bush.  510. 
And  see  Mateer  v.  Brown,  1  Cal.  221,  231. 

8  8  The  innkeeper  is  exonerated  in  Louisiana.  Civ.  Code,  art.  2939;  \Vo^>d- 
worth  V.  Morse,  18  La.  Ann.  156. 

»8  See  post,  p.  351. 

100  Howe  Mach.  Co.  v.  Pease,  49  Vt  477. 

101  Howe  MactL  Co.  v.  Pease,  supra;   Metcalf  v.  Hess,  14  III.  129. 

102  Seymour  v.  Cook,  53  Barb.  (N.  Y.)  451;  Sibley  v.  Aldrlch.  33  N.  H.  553. 
But  see  Dawson  v.  Chamney,  5  Q.  B.  164.  This  IlabUIty  exists  only  aa  to 
the  horses  of  guests.     Thickstun  v.  Howard,  8  Blackf.  (Ind.)  535.     An  lun- 


282  INNKEEPERS.  [Cll.  S 

the  innkeeper's  charge  is  sufficient  to  make  him  liable,  unless  he 
shows  facts  which  excuse  him.^°* 

Loss  by  Theft. 

If  the  goods  of  a  guest  are  stolen  by  the  Innkeeper's  servants  or 
domestics,  by  another  guest, ^°*  or  by  someone  from  outside  the  inn, 
the  innkeeper  is  bound  to  make  restitution;  for  it  is  his  duty  to 
provide  honest  servants,  and  to  exercise  an  exact  vigilance  over 
all  persons  coming  into  his  house,  as  guests  or  otherwise.  His  re- 
sponsibility extends  to  all  his  servants  and  domestics,  and  he  is 
bound  in  every  event  to  pay  for  them,  if  stolen,^***  unless  they  were 
stolen  by  a  servant  or  companion  of  the  guest.  In  case  of  a  loss 
by  theft,  it  is  no  excuse  for  the  innkeeper  that  he  was  sick  or  ab- 
sent from  home  at  the  time;  for  he  is  bound,  in  such  cases,  to  pro- 
vide honest  and  faithful  servants  according  to  the  confidence  re- 
posed in  him  by  the  public.^"®  If  an  innkeeper  allows  persons  to 
act  as  servants  or  agents  during  his  absence  in  his  hotel,  he  is  re- 
sponsible for  their  conduct,  and  for  the  loss  of  the  goods  deposited 
therein  as  directed  by  such  servants  or  agents.^"^ 

Fault  of  Guest  or  His  Servant  or  Companion. 

An  innkeeper  is  not  liable  for  the  loss  of  a  guest's  property, 
when  the  loss  is  due  to  the  fault  or  negligence  of  the  guest  him- 
self.^°^     Nor  is  the  innkeeper  liable  for  losses  caused  by  the  serv- 

keeper  is  liable  for  damage  to  a  guest's  horse  by  the  horse  of  another  guest, 
without  any  negligence  on  the  part  of  the  innkeeper.  Sibley  v.  Aldrich,  33 
N.  H.  553.  An  innkeeper  is  liable  for  horses  of  guests  injured  or  killed  by 
negligence  in  securing  them,  or  by  an  imperfect  and  badly-constructed  stable. 
Dickerson  v.  Rogers,  4  Humph.  (Tenn.)  179. 

103  Hill  V.  Owen.  5  Blackf.  (Ind.)  323. 

104  Gile  V.  Libby,  36  Barb.  (N.  Y.)  70;  Dessauer  v.  Baker,  1  Wils.  (Ind.) 
429. 

105  Houser  v.  Tully,  G2  Pa.  St.  92;  Walsh  v.  Portei-field,  87  Pa.  St.  376; 
Dunbier  v.  Day,  12  Neb.  596,  12  N.  W.  109;  Spring  v.  Hager,  145  Mass.  186, 
13  N.  E.  479;  Smith  v.  Wilson,  36  Minn.  334,  31  N.  W.  176;  Fuller  v.  Coats, 
18  Ohio  St.  343;  Armistead  v.  Wilde,  17  Q.  B.  201;  Burgess  v.  Clements,  4 
Maule  &  S.  300;   Calye's  Case,  8  Coke,  32. 

106  Houser  v.  Tully,  62  Pa.  St.  92;   Walsh  v.  Porterfield,  87  Pa.  St.  376. 
10  7  Rockwell  V.  Proctor,  39  Ga.  105,  107. 

108  Purvis  V.  Coleman,  21  N.  Y.  Ill;  Fowler  v.  Dorlon,  24  Barb.  (N.  Y.)  3S4; 
Lauier  v.  Youngblood,  73  Ala.  587;    Spring  v.  Hager,  145  Mass.  186,  13  N. 


§    54]  RIGHTS  AND  LIABILITIES LIABILITY  FOR  QDEaTS'  QOOD8.  283 

ants  or  companions  of  the  guest.' "^  Thus,  an  unnecessarj  dis- 
play of  money  or  valuables,  or  leaving  them  where  they  would 
tempt  thieves,  may  be  negligence.'^"  But  failure  to  lock  or  bolt 
his  door  is  not  necessarily  negligence  on  the  part  of  the  gue»t.»** 
It  is  only  evidence  of  negligence.''"  Nor  is  the  innkeeper  exoner- 
ated when  a  theft  is  committed  by  a  fellow  guest  with  whom  the 
owner  of  the  property  stolen  had  consented  to  occupy  the  8:inie 
room."' 

To  enable  the  innkeeper  to  discharge  his  duty,  and  to  secure  tin- 
property  of  the  traveler  from  loss,  while  in  a  house  ever  open  to  the 
public,  it  may,  in  many  instances,  become  absolutely  necessary  for 
him  to  provide  special  means,  and  to  make  necessary  regulations 
and  requirements  to  be  observed  by  the  guest,  to  secure  the  safety 

B.  479;  Walsh  v.  Portei-field,  87  Pa.  St.  376;  Mason  v.  Thompson,  9  Pick. 
(Mass.)  280;  Berkshire  Woollen  Ck).  v.  Proctor,  7  Gush.  (Mass.)  417;  Jalle  v. 
CJardinal,  35  Wis.  118,  130;  Hadley  v.  Upshaw.  27  Tex.  547;  Buitowb  v. 
Trieber,  21  Md.  320;  Elcox  v.  Hill,  98  U.  S.  218;  Morgan  v.  Ravey,  G  Hurl. 
&  N.  265;  Cashill  v.  Wright,  6  El.  &  Bl.  891;  Oppenheim  v.  Hotel  Co..  L.  R 
6  C.  P.  515.  But  see  Rubenstein  v.  Cruikshanks,  54  Mich.  199,  19  N.  W.  95-1. 
Aji  innkeeper  is  liable  for  the  safe-keeping  of  the  valise  and  box  of  a  peddler, 
his  guest,  although  he  was  not  notified  of  the  nature  and  value  of  their  con- 
-ents,  and  the  peddler  was  too  drunk  to  take  pi-oper  care  of  it.  Rubenstein 
V.  Ormkshanks,  54  Mich.  199,  19  N.  W.  954.  Evidence  of  gross  neglect  of 
the  owner  of  property,  to  exempt  the  innkeeper  from  liability  for  Its  loss, 
must  be  confined  to  the  period  while  he  was  a  guest  at  the  innkeeper's  house. 
Burrows  v.  Trieber,  21  Md.  320. 

109  Houser  v.  Tully,  62  Pa.  St.  92. 

110  Armistead  v.  Wilde,  17  Q.  B.  201;  Cashill  v.  Wright,  6  El.  &  Bl.  S91. 

111  Buddenburg  v.  Benner,  1  Hilt.  (N.  Y.)  84;  Classen  v.  Leopold.  2  Swee- 
ney (N,  Y.)  705;  Gile  v.  Libby,  36  Barb.  (N.  Y.)  70;  Murchison  v.  Sergent, 
69  Ga.  206;  Bohler  v.  Owens,  60  Ga.  185;  Lanier  v.  Youngblood,  73  Alu.  5S7. 
594;  Spring  v.  Hager,  145  Mass.  186,  13  N.  E.  479;  Batterson  v.  Vogcl.  10 
Mo.  App.  235;  Profilet  v.  Hall,  14  La.  Ann.  530;  Spice  v.  Bacon,  36  Law  T. 
(N.  S.)  896;  Herbert  v.  Markwell,  45  Law  T.  (N.  S.)  649;  Mor^-au  v.  lUivoy. 
2  Fost.  &  F.  283,  6  HurL  &  N.  2t'5;  Oppenheim  v.  Hotel  Co.,  L.  R.  6  C.  P.  515; 
Mitchell  v.  Woods,  16  Law  T.  (N.  S.)  676. 

112  Spring  V.  Hager,  145  Mass.  186,  13  N.  E.  479;  Murchison  v.  Sergeut.  60 
Ga.  206;  Oppenheim  v.  Hotel  Co.,  L.  R.  6  C.  P.  515;  Spice  v.  Bacon.  36  Law 
T.  (N,  S.)  896;   Herbert  v.  Markwell,  45  Law  T.  (N.  S.)  649. 

113  Olson  V.  Grossman,  31  Minn.  222,  17  N.  W.  375;  Gile  v.  Libby,  3U  Barb. 
(N.  Y.)  70;    Buddenburg  v.  Benner,  1  Hilt.  (N.  Y.)  84- 


284  INNKEEPERS.  [Ch.  6 

of  his  property.  When  such  means  and  requirements  are  reasona- 
ble and  proper  for  that  purpose,  and  they  are  brought  to  the 
knowledge  of  the  guest,  with  the  information  that,  if  not  observed 
by  him,  the  innkeeper  will  not  be  responsible,  ordinary  prudence, 
the  interest  of  both  parties,  and  public  policy  would  require  of  the 
guest  a  compliance  therewith;  and  if  he  should  fail  to  do  so,  and 
his  goods  are  lost  solely  for  that  reason,  he  would  justly  and  prop- 
erly be  chargeable  with  negligence.  To  hold  otherwise  would 
subject  a  party,  without  fault,  to  the  payment  of  damages  to  a 
party  for  loss  occasioned  by  his  own  negligence,  and  would  be 
carrying  the  liability  of  innkeepers  to  an  unreasonable  extent.^ ^* 

SAME— FOR  WHAT  PROPERTY  LIABLE. 

55.  The  innkeeper's  liability  extends  to  all  the  goods  of  his 
guests  -which  come  to  the  inn,  except — 

EXCEPTION — (a)  Goods  for  show  or  sale  (p.  287). 

(b)  Goods  retained  in  exclusive  custody  of  the  guest  (p. 

289). 

Goods  of  Guests  Only. 

Innkeepers  are  not  liable,  as  such,  for  goods  deposited  with  them 
by  any  but  guests  of  their  inns.^^'    While  an  individual  proprietor 

114  Fuller  V.  Coats,  18  Ohio  St.  343;  Purvis  v.  Coleman,  21  N.  Y,  111;  Berk- 
shire Woollen  Co.  v.  Proctor,  7  Gush.  (Mass.)  417;  Cashill  v.  Wright,  6  El.  & 
BL  891. 

iiBTowson  V.  Havre  de  Grace  Bank,  6  Har.  &  J.  (Md.)  47;  McDaniels  v, 
Robinson,  28  Vt.  387;  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485.  If  a  servant  is 
robbed  of  his  master's  money  or  goods  while  a  guest  at  an  inn,  the  master 
may  maintain  an  action  against  the  innkeeper.  Towson  v.  Havre  de  Grace 
Bank,  supra.  This  principle  applied  to  one  who  hires  a  horse  and  chaise 
from  the  owner,  and  intrusts  them  to  an  Innkeeper.  Mason  v.  Thompson,  9 
Pick.  280.  A  guest  w'.o  is  a  mere  depositary  of  the  goods  he  brings  with 
him  may  maintain  an  action  against  the  innkeeper  for  their  loss.  Kellogg 
V.  Sweeney,  1  Lans.  (N.  Y.)  397.  Plaintiff's  stallion  stood  at  defendant's  inn 
certain  days  each  week,  imder  an  agreement,  made  for  the  season,  for  serv- 
ing mares.  Plaintiff  had  the  key  to  the  stall,  and  fed  and  cared  for  the 
horse.  Defendant  furnished  the  oats  for  the  horse,  and  meals  for  the  plain- 
tiff, at  a  price  less  than  the  ordinary  rates  to  travelers.     Held,  that  defend- 


§    55]  RIGHTS  AND  LIABILITIES FOR  WHAT  PROPERTY   LIABLE.  2S'i 

of  an  inn  may  incur  a  liability  as  bailee  for  the  safe-keeping  of 
goods  which  he  has  voluntarily  undertaken  to  keep  for  others  than 
guests,  it  is  not  within  the  course  of  emi)]oyment  of  a  mere  clerk 
of  such  innkeeper  to  receive  on  deposit  the  ^'oods  of  any  except 
guests  of  the  inn;  and  if  he  does  so  it  is  a  transaction  between  him 
and  the  owner,  and  no  liability  for  the  loss  of  such  goods  attaches 
to  the  innkeeper."' 

More  than  is  Necessary  for  Traveling. 

The  liability  of  an  innkeeper  for  a  loss  !  _  ,        extends  to 

all  the  movable  goods  and  money  wlii(li  ■.we  plarpri  wiihin  tJjiLJ'ill, 
and  is  not  restricted  to  such  things  uiid  sums  only  as  are  neces- 
sary and  designed  for  the  ordinary  t.-avelinff  expenses  of  the 
guest. "'^  It  is  sometimes  claimed  that  an  innkeeper  is  liable  only 
for  such  an  amount  of  money  as  is  necessary  for  the  reasonable  ex- 
penses of  the  guest.  This  distinction  is  sought  to  be  maintained 
upon  the  analogy  to  the  case  of  a  carrier  of  passengers,  who  is  Ha 
ble  only  for  money  or  articles  convenient  to  the  traveler  on  his 
journey,  and  not  for  goods  or  merchandise,  as  such."'  But  thi.« 
contention  is  not  supported  by  the  cases,  and  innkeepers  are  held 
liable  for  goods  which  are  not  strictly  baggage.""  But,  as  lo  tin- 
amount  of  money  for  which  an  innkeeper  may  be  made  liable,  it 

Ant's  custody  was  not  that  of  innkeeper,  and  that,  therefore,  he  was  not 
liable  for  the  destruction  of  the  barn  and  horse  by  lire  without  uejjllgeuce  ou 
his  part.     Mowers  v.  Fethers,  61  N.  Y.  34. 

116  Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St.  32,  4  N.  E.  398. 

117  Berkshire  Woollen  Co.  v.  Proctor,  7  Cush.  417;  Towson  v.  Havre  de 
Grace  Bank,  6  Har.  &  J.  47;  Wilkins  v.  Earle,  44  N.  Y.  172;  Johnson  v. 
Richardson,  17  111.  302,  305.  Cf.  Simon  v.  Miller,  7  La.  Ann.  3(;0;  Welsenijer 
V.  Taylor,  1  Bush  (Ky.)  27.5.  But  it  is  otherwise  by  statute  iu  .Maine.  See 
Noble  V.  Milliken,  74  Me.  225. 

118  See  post,  "Carriers,"  p.  3S3. 

119  Taylor  v.  Monnot,  4  Duer,  IIG;  Kellogg  v.  Sweeney,  1  Lans.  (N.  Y.)3;>7; 
Wilkins  v.  Earle,  44  N.  Y.  172;  Needles  v.  Howard,  1  E.  D.  Smith  (N.  Y.)  54; 
Pinkerton  v.  Woodward,  33  Cal.  557;  Berkshire  Woollen  Co.  v.  Proctor.  7 
Cush.  417;  Rubenstein  v.  Cruikshanks,  54  Mich.  19'J.  19  N.  W.  954;  Smith  v. 
Wilson,  36  Minn.  334,  31  N.  W.  176;  Quinton  v.  Courtney,  Hayw.  (N.  C.)  40; 
Sasseen  v.  Clark,  37  Ga.  242;  Kent  v.  Shuckard,  2  Bam.  &  Adol.  S03;  Armi- 
stead  V.  White,  6  Eng.  Law  &  Eq.  349.  In  Clute  v.  Wiggins.  14  Johns.  (.\. 
Y.)  175,  the  guest  recovered  for  certam  bags  of  wheat  and  barley.  In  Piper 
V.  Manny,  21  Wend.  (N.  Y.)  2S2,  the  recovery  was  for  a  tub  of  butter.     Iu 


286  INNKEEPERS.  [Ch.  6 

has  been  said  that :  "It  would  be  too  great  a  responsibility  -if  that 
liability  could  be  extended  so  as  to  cover  any  conceivable  amount 
of  money  or  gold  dust  which  the  traveler,  after  he  has  become  a 
guest,  might  be  disposed  to  thrust  into  the  custody  of  his  host, 
and  thus  compel  him  to  become  the  insurer  of  its  safety.  We 
think,  in  this  case,  it  is  a  question  which  the  jury  should  decide, 
whether  the  bundle  was  taken  to  the  inn  of  the  defendant  by  the 
plaintiff  in  his  character  of  guest,  in  which  event  the  defendant's 
liability  would  cover  all  losses,  or  whether,  after  the  plaintiff  be- 
came a  guest  with  the  defendant,  it  was  deposited  there  in  the 
nature  of  an  ordinary  bailment,  in  which  case  the  defendant  would 
be  bound  to  exercise  no  more,  at  the  furthest,  than  ordinary  dili- 
gence, and  would  be  answerable,  certainly,  for  nothing  more  than 
ordinary  neglect."  ^^°  And  in  Maryland  it  is  held  that  money,  to 
constitute  a  part  of  a  guest's  baggage  for  which  the  innkeeper  is 
responsible,  should  be  of  such  an  amount  only  as  would  be  con- 
venient to  meet  his  traveling  expenses,  and  that,  to  arrive  at  this, 
the  condition  of  the  guest,  his  mode  of  life,  his  habits,  tastes,  the 
nature,  character,  and  objects  of  his  journey,  must  be  taken  into 
consideration  by  the  jury.^^^ 

Goods  Arriving  with  Guest. 

No  reason  is  perceived  why  the  responsibility  of  the  innkeeper 
for  the  safe-keeping  of  his  guest's  property  should  be  limited  to 
such  property  as  the  guest  may  have  in  his  immediate  possession 
at  the  moment  of  his  arrival  at  the  inn.  The  relation  of  innkeeper 
and  guest,  out  of  which  springs  the  responsibility,  is  the  same, 
whether  the  guest's  baggage  is  conveyed  to  the  inn  with  him,  or  at 
a  subsequent  time;  or  whether  he  then  has  in  his  possession,  or 
afterwards  procures,  the  money,  clothing,  etc.,  that  he  may  need 
on  his  journey.^^^ 

Sneider  v.  Geiss,  1  Yeates  (Pa.)  34,  the  Innkeeper  was  held  liable  for  230 
Spanish  milled  dollars.  In  Hulett  v.  Swift,  33  N.  T.  571,  the  plaintiff  recov- 
ered the  value  of  his  horses,  wagon,  and  a  load  of  buckskin  goods. 

120  Mateer  v.  Brown,  1  Cal.  221. 

121  Treiber  v.  Burrows,  27  Md.  130;  Pettlgrew  v.  Bamum,  11  Md.  434,  448; 
Giles  V.  Fauntleroy,  13  Md.  126. 

122  pinkerton  v.  Woodward,  33  CaL  557;  Mateer  v.  Brown,  1  CaL  221. 


§    55]  RIGHTS  AND  LIABILITIES FOB  WHAT  PHOPBRTY  LIABLE.  287 

Goods  for  SJiow  or  Sale. 

Chancellor  Kent  says  ^2"  that  "if  a  guest  applies  for  a  room  in  an 
inn  for  a  purpose  of  business  distinct  from  his  accominodatioii  as 
a  guest,  the  particular  responsibility  does  not  extend  to  fjoods  lost 
or  stolen  from  that  room."  ^'*  Thus,  if  a  person,  going  into  an  hotel 
as  a  guest,  takes  to  his  room  not  ordinary  baggage,  or  those  articles 
which  generally  accompany  the  traveler,  but  valuable  merchandise, 
such  as  watches  and  jewelry,  and  keeps  them  there  for  show  and 
sale,  and  from  time  to  time  invites  parties  into  his  room  to  inspect 
and  to  purchase,  unless  there  is  some  special  circumstance  in  the 
case  showing  that  the  innkeeper  assumes  the  same  responsiliility,  as 
for  ordinary  baggage,  as  to  such  merchandise,  the  special  obligations 
imposed  by  the  common  law  do  not  exist.^^' 
Goods  Received  vnihin  the  Tan. 

The  liability  of  innkeepers  does  not  attach,  unless  the  goods  are 
brought  within  the  inn,  or  otherwise  placed  within  Jheir  custody- 
in  some  customary  and  reasonable  wjiy."°  It  is  not  necessary  that 
the  goods  should  be  placed  in  their  special  keeping,  but  it  is  snfli 
cient  if  they  are  deposited  in  the  house  of  the  innkeeper,  or  in- 
trusted to  the  care  of  his  family  or  servants. ^=^'  The  innkeeper^ 
liability  extends  to  goods  iu  all  ]jarts  of  the  ron,  and  to  ^he  out 
buildings  connected  with  the  iuu,^^*  and  even  to  goods  not  actually 

123  2  Comm.  596. 

124  story,  Bailm.  §  47G;  Fisher  v,  Kelsey,  121  U.  S.  3S3,  7  Sup.  Ct.  929. 
affirming  16  Fed.  71;  Myers  v.  Cottrill,  5  Biss.  465,  Fed.  Cas.  No.  9.985;  Bur- 
gess v.  Clements,  4  Maule  &  S.  300. 

126  Myers  v.  Cottrill,  5  Biss.  465,  Fed.  Cas.  No.  9,985;  Mowers  v.  Futherb. 
61  N.  Y.  34;  Fisher  v.  Kelsey,  121  U.  S.  383,  7  Sup.  Ct  929;  Becker  v. 
Haynes,  29  Fed.  441. 

128  Mason  v.  Thompson,  9  Pick.  (Mass.)  280;  Piper  v.  Manny.  21  Wend.  (N. 
Y.)  282;  Albin  v.  Presby,  8  N.  H.  408;  Minor  v.  Staples,  71  Me.  316;  Norcruss 
V.  Norcross,  53  Me.  163;  Beunet  v.  Mellor,  5  Term  K.  273;  Kent  v.  Sliuokartl. 
2  Barn.  &  Adol.  803. 

127  2  Kent,  Comm.  593;  Story,  Bailm.  §  479;  McDonald  v.  Edgerton,  B 
Barb.  (N.  Y.)  560;    Rockwell  v.  Proctor,  39  Ga.  105. 

128  Albin  V.  Presby,  8  N.  H.  408,  410;  Burrows  v.  Trieber,  21  Md.  320; 
McDonald  v.  Edgerton,  5  Barb.  (N.  Y.)  560;  Bennet  v.  Mellor.  5  Term  11.  273; 
Richmond  v.  Smith,  8  Bam.  &  C.  9.  But  see  Sanders  v.  Spencer,  3  Uyer. 
266b.  In  Clute  v.  Wiggins,  14  Johns.  (N.  Y.)  175,  the  guest  put  his  slelifh. 
loaded  with  wheat,  into  an  outhouse  appurtenant  to  the  inn.  whore  I.mds  of 


288  INNKEEPERS.  [Ch.  6 

within  the  inn  precincts,  if  so  left  by  the  direction  of  the  innkeeper 
or  his  servants.^^'  Thus,  where  an  hotel  keeper  sends  his  porter  to 
the  cars  to  receive  the  baggage  of  persons  traveling,  and  baggage 
is  delivered  to  the  porter,  and  the  traveler  becomes  the  guest  of 
the  hotel,  the  liability  of  the  innkeeper  as  such  for  the  baggage 
begins  on  the  delivery  to  the  porter.^^° 

An  innkeeper  who  also  keeps  a  sea-bathing  house,  separate  from 
the  inn,  is  not  liable  as  an  innkeeper  for  goods  and  clothes  of  his 
guests,  left  there  while  the  guests  were  bathing,  and  stolen  there- 
from. One  may  be  an  innkeeper  without  being  a  bath-house 
keeper,  or  he  may  be  a  bath-house  keeper  without  being  an  inn- 
keeper; or  the  same  person  may  engage  in  both  employments, 
just  as  a  livery  stable  keeper  may  also  be  a  common  carrier  of  pas- 
sengers; but  his  doing  so  will  not  make  him  responsible  in  the 
one  capacity  for  liabilities  incurred  in  the  other.  This  does  not 
apply  to  bath  rooms  attached  to  or  kept  within  hotels,  but  to  sepa- 
rate buildings,  erected  upon  the  seashore,  and  used,  not  as  bath 

the  kind  were  usually  received,  but  without  specially  committing  it  to  the 
innkeeper.  The  grain  was  stolen  in  the  night,  and  the  innkeeper  was  held 
liable  for  the  loss.  It  would  be  otherwise  if  a  ti-aveler,  on  arriving  at  an 
inn,  should  place  his  loaded  wagon  under  an  open  shed,  not  appurtenant  to 
the  inn,  and  near  the  highway,  and  make  no  request  to  the  innkeeper  to  take 
it  into  his  custody. 

129  An  innkeeper  is  responsible  for  the  safe-keeping  of  a  load  of  goods  be- 
longing to  a  traveler  who  stops  at  his  inn  for  the  night,  if  the  carriage  con- 
taining the  goods  be  deposited  in  a  place  designated  by  the  servant  of  the 
Innkeeper,  although  such  place  be  an  open  uninclosed  space  near  the  public 
highway.  Hilton  v.  Adams,  71  Me.  19.  But  see  Albui  v.  Presby,  8  N.  H. 
40S.  So,  an  innkeeper,  on  a  fair  day,  upon  being  asked  by  a  ti-aveler,  then 
driving  a  gig,  of  which  he  was  the  owner,  "whether  he  had  room  for  the 
horse,"  put  the  horse  into  the  stable  of  the  inn,  received  the  traveler,  with 
some  goods,  into  the  inn,  and  placed  the  gig  in  the  open  street,  without  the 
Inn  yard,  where  he  was  accustomed  to  place  the  carriages  of  his  guests  on 
fair  days.  The  gig  having  been  stolen  from  thence,  held,  that  the  innkeeper 
was  answerable.     Jones  v.  Tyler,  28  E.  C.  L.  138. 

130  Sasseen  v.  Clark,  37  Ga.  242;  Dickenson  v.  Winchester,  4  Cush.  (Mass.) 
114.  An  innkeeper  employing  a  transportation  company  to  furnish  an  om- 
nibus and  wagon  to  receive  guests  of  the  hotel  at  a  railway  depot,  and  to 
transport  them  and  their  baggage  to  the  hotel,  is  liable  If  the  baggage  of  a 
guest  delivered  to  such  company  is  by  it  lost  before  reaching  the  hoteL  Os- 
kei-y  V.  Nagle,  83  Ga.  696. 


§   56]  RIGHTS    AND   LIABILITIES LIMITED    LIABILITY.  289 

rooms,  but  as  places  in  which  those  who  bathe  in  the  sea  change 
their  garments,  and  leave  their  clothes  and  other  valuables  while 
so  bathing."* 

Goods  in  Exclusive  Possession  of  Guest. 

An  innkeeper  may  be  exonerated  by  showing  that  the  guest 
whose  goods  have  been  lost  took  them  into  his  exclusive  custody, 
for  the  innkeeper's  responsibility  is  only  coextensive  with  his  cus- 
tody and  control  of  the  goods.^^^  The  rule  is  the  same  when  the 
guest  intrusts  his  property  to  another  guest  or  inmate."*  But  re- 
taining money  or  valuables  on  his  own  person  is  not  necessarily 
such  exclusive  possession  as  will  excuse  the  innkeeper,"*  nor  is 
the  fact  that  the  guest  directs  his  goods  to  be  kept  in  a  certain  piut 
of  the  inn,^*'  or  ordered  them  taken  to  his  bedroom."* 


SAME— LIMITED  LIABILITY. 

56.  An  innkeeper  may  be  exempted,  from  liability — 

(a)  By  contract  or  custom  (p.  289). 

(b)  By  statute  (p.  290). 

(1)  For  losses  above  a  certain  amount,  in  some  states 

(p.  290). 

(2)  By  notice,  in  many  states,  for  property  not  de- 

livered to  the  innkeeper  to  be  put  in  his  safe 
(p.  291). 

By  Contract. 

The  exceptional  liability  of  an  innkeeper  may,  no  doubt,  be  re- 
stricted, in  a  measure  at  least,  by  an  express  contract   with  the 

181  Minor  v.  Staples,  71  Me.  316. 

182  Weisenger  v.  Taylor,  1  Busb  (Ky.)  275,  276;    Vauce  v.  ThnHKni.rt.u.  a 
Bush  (Ky.)  41;    Fuller  v.  Coats,  18  Ohio  St.  343. 

133  Sneider  v.'  Geiss,  1  Yeates  (Pa.)  34;    Houser  v.  TuUy,  62  Pa.  St.  92. 
184  Jalie  V.  Cardinal,  35  Wis.  118;    Smith  v.  Wilson,  36  Minn.  334.  31  N.  W. 
176. 
18B  Fuller  V.  Coats,  18  Ohio  St.  343;    Packai-d  t.  Northcraft,  2  Meic  (Kj.) 

439. 
138  Fuller  V.  Coats,  supra. 

LAW  BAILM. — 19 


290  INNKEEPERS.  [Ch.   6 

guest.  On  this  point,  Mr.  Schouler  says:*'^  "The  right  of  miti- 
gating this  responsibility  by  special  contract  with  the  particular 
guest  receives,  thus  far,  but  slight  attention  from  our  courts;  yet, 
if  analogies  can  serve  us,  they  tend  plainly  to  the  conclusion  that 
any  innkeeper  may  make  a  qualified  or  limited  acceptance  of  his 
guest's  property,  though  not,  in  America  at  least,  to  the  extent  of 
divesting  himself  of  all  responsibility  for  the  acts  of  servants,  fel- 
low lodgers,  or  others  about  the  inn,  nor  certainly  so  as  to  excuse 
misconduct  or  the  want  of  ordinary  care  on  his  own  part."  ^^^  An 
innkeeper  cannot  limit  his  liability  by  an  implied  contract,  by  the 
mere  posting  of  a  notice  in  the  room  which  the  guest  occupies  that 
the  innkeeper  will  not  be  liable  for  the  loss  of  goods  unless  certain 
regulations  mentioned  therein  are  complied  with;^^^  nor  by  a 
printed  heading  to  the  same  effect  on  the  register,  even  though  the 
guest  signs  the  register,  unless  his  attention  is  called  thereto,  and 
he  assents.^*" 

Same — Custom. 

Though  it  is  sometimes  said  that  an  innkeeper's  liability  may  be 
limited  by  custom,^*^  yet  this  can  only  be  true  on  the  theory  of  an 
implied  contract.  Therefore  a  guest  is  not  bound  by  a  custom  of 
which  he  was  ignorant,  for  his  assent  cannot  be  presumed.^*' 

By  Statute — Losses  above  Certain  Amount. 

By  statutes  in  a  few  states,  the  liability  of  innkeepers  is  limited 
to  a  certain  amount,^*^  or  to  such  property  as  is  usual  and  prudent 

187  Bailm.  (2d  Ed.)  §  309. 
138  See  post,  p.  413. 

189  Bodwell  V.  Bragg,  29  Iowa,  232.  And  see  Burbank  v.  Chapin,  140 
Mass.  123,  2  N.  E.  934. 

140  Bernstein  v.  Sweeny,  33  N.  Y.  Super,  Ct.  271;  Olson  v.  Grossman,  31 
Minn.  222,  17  N.  W.  375.    And  see  Murchison  v.  Sergent,  69  Ga.  206. 

141  Albin  V.  Presby,  8  N.  H.  408. 

142  Berkshire  Woollen  Co.  v.  Proctor,  7  Gush.  (Mass.)  417.  When  the  pro- 
prietor of  an  hotel  employs  a  servant  to  receive  and  keep  the  property  of 
guests  while  at  meals,  his  liability  for  the  default  of  this  servant  in  the  cus- 
tody of  property  so  received  is  not  affected  by  the  fact  that  he  has  also  pro- 
vided a  check  room  for  the  safe-keeping  of  such  property.  Labold  v.  South- 
em  Hotel  Co.,  54  Mo.  App.  567. 

143  Massachusetts,  Pub.  St  1882,  c.  102,  §  12;    Stim.  Am.  St.  Law,  §  4392. 


§    5G]  RIGHTS    AND    LIABILITIES LIMITED    LIABILITY.  291 

for  a  guest  to  retain  on  his  person  or  in  his  room,'**  or  to  such 
goods  as  are  needed  by  the  guest  for  present  use.^" 
Same — Posting  Notices. 

In  most  states  it  is  now  provided  by  statute  that  an  innkeeper 
may  avoid  liability  for  the  loss  of  goods  not  intrusted  to  his  special 
care  by  posting  notices,  in  the  manner  prescribed  by  the  statutes, 
that  he  has  a  safe  for  the  deposit  of  money  and  valuables  and  will 
not  be  responsibe  therefor  unless  they  are  deposited  with  hiui.'** 
It  is  said  that  such  statutes,  being  in  derogation  of  the  common 
law,  are  to  be  strictly  construed.^*'  The  requirements  of  such  stat- 
utes as  to  the  posting  of  notice  must  be  shown  to  have  been  com- 
plied with,  or  the  innkeeper  is  not  excused.***  It  has  been  held 
that  actual  notice  to  the  guest  is  not  suflicient,  if  the  required  no 
tices  have  not  been  posted.***     Under  these  statutes,  an  innkeeper 

i<*  Pennsylvania,  Brijrhtly,  Purd.  Dig.  tit.  "Inns,"  18;  Illinois,  Cotliiau's 
Rev.  St  1889,  c.  71,  §§  1,  2;  Micliigau,  How.  Ann.  St.  1882.  §  2U1J5;  Iowa. 
Miller's  Rev.  Code  188U,  c.  181,  §  1;  Nebraslia,  Comp.  St.  lS8r>.  c.  ."».  §§  1,  2; 
Delaware,  14  Laws,  c.  417,  §  1;  I^uisiana,  Rev.  Civ.  Code  1882,  art.  2lHiS; 
Stim.  Am.  St.  Law,  §  4392. 

145  California,  Civ.  Code,  §  GSOO;  Dalvota,  Civ.  Codo,  §  10G.3;  New  Hamp- 
shire, Laws  1SS.5,  c.  97;  Massachusetts,  Pub.  St.  1885,  c.  'S~>S;  Maine,  Rev. 
St.  1883,  c.  27.  §  7.    Stim.  Am.  St.  Law,  §  4392. 

i4«  Rhode  Island,  Pub.  St.  1882,  c.  204,  §  30.  New  Yorli.  Laws  1855.  c.  421 
8  1;  Banks  &  Bros.'  Rev.  St.  (8th  Ed.)  p.  1419.  New  Jerse.v.  Revision.  1877. 
tit.  "Inns,"  §  70.  Peunsylvauiu,  Brightly,  Purd.  Dig.  tit  "Inns,"  18.  Ohio. 
Rev.  St  1890,  §  4427.  Illinois,  Cothran's  Rev.  St  1889,  c.  71,  §§  1,  2.  Michi- 
gan, How.  Ann.  St  1882,  §  2095.  Wisconsin,  Sanb.  &  B.  Ann.  St.  Is89. 
§  1725.  Iowa,  McClaln's  Ann.  St.  1884,  p.  610.  Minnesota.  Gen.  St.  1S7S. 
c.  124,  §  21;  Gen.  St  1894,  §  7997.  Nebraska,  Comp.  St.  1885.  c.  39.  §§  1.  2. 
Maryland,  Pub.  Gen.  Laws  1888.  p.  1032.  Delaware.  14  Laws.  c.  417.  |  1. 
Kentucky,  St  1894,  §  217G.  Tennessee,  Mill.  &  V.  Code  1884.  |  2787.  Cali- 
fornia, Civ.  Code,  §  68()0.  Dakota,  Civ.  Code,  §  10t;3.  Georgia.  Code  1S82. 
§  2119.  Louisiana,  Rev.  Civ.  Cede  1882,  art.  29G8.  Alabama,  Civ.  Code  ISSU, 
§§  1327.  1328.    1  Stim.  Am.  St.  Law,  §  4392. 

147  Ramaley  v.  Leiand,  43  N.  T.  539;    Lanier  v.  Youngblood,  73  Ala.  587. 

148  Chamberlain  v.  West  37  Minn.  54,  33  N.  W.  114;  Olson  v.  Cnjssiuan.  31 
Minn.  222,  17  N.  W.  375;  Lanier  v.  Youngblood.  73  Ala.  587;  Beale  v.  Posoy. 
72  Ala.  323;    Spice  v.  Bacon,  36  Law  T.  (N.  S.)  896. 

i4»  Batterson  v.  Vogel,  8  Mo.  App.  24;  Lanier  v.  Youngblood.  73  Ala.  587. 
Contra,  Purvis  v.  Coleman,  21  N.  Y.  IIL  Cf.  Shultz  v.  WvlH,  134  Pa.  St  262, 
19  Atl.  742. 


292  INNKEEPERS.  [Oh.  6 

Is  still  liable  for  the  goods  of  his  guests  not  deposited  as  required 
by  properly  posted  notices^  where  the  loss  is  due  to  the  fault  of  the 
innkeeper  or  of  his  servants.^  °° 

In  most  states,  certain  property  particularly  valuable  in  itself, 
taking  but  small  space,  compared  with  its  value,  for  its  safe-keep- 
ing, easy  of  concealment  and  removal,  holding  out  great  tempta- 
tion to  the  dishonest,  and  not  necessary  to  the  comfort  or  con- 
venience of  the  guest  while  in  his  room,  is  made  the  subject  of  the 
statutory  exemption.  Property  of  a  different  description,  includ- 
ing that  which  is  useful  or  necessary  to  the  comfort  and  con- 
venience of  the  guest,  that  which  is  usually  carried  and  worn  as  a 
part  of  the  ordinary  apparel  and  outfit,  or  is  ordinarily  used  and  is 
convenient  for  use  by  travelers,  as  well  in  as  out  of  their  rooms,  is 
left,  as  before  the  statute,  at  the  risk  of  the  innkeeper.^ "^  Thus, 
such  articles  as  apparel  worn  at  the  time,  and  watch,  and  pocket 
money,  are  not  expected  to  be  delivered  to  the  innkeeper  for  safe- 
keeping, and  the  retention  of  them  in  the  guest's  room  is  in  accord 
with  the  purpose  of  the  statute.  In  respect  to  such  articles,  therefore, 
thus  kept,  the  innkeeper  is  responsible.^  °*  The  reasons  for  such  a 
holding  are  stated  in  a  Georgia  case  by  Chief  Justice  Jackson,  as  fol- 
lows: 'T^s  the  guest  to  deposit  his  valise  there,  and  go  or  send  after  it 
to  get  out  a  clean  shirt  to  put  on?  Is  he  to  leave  his  coat  there,  go  to 
his  room  in  his  shirt  sleeves,  or  send  it  down  and  get  a  check  for  it 
after  he  goes  to  bed?  Is  he  to  deposit  there  his  watch  and  pocket 
change,  and  get  a  check  for  them?  The  whole  regulation,  if  meant  for 
guests  in  their  rooms,  is  on  its  face  not  only  unreasonable,  but  ab- 
surd." *°^  In  some  states,  however,  under  statutes  differently  worded, 
no  such  exceptions  are  admitted,  and  the  courts  hold  the  intention  of 
the  legislators  to  have  been  to  require  a  guest  to  deposit  his  watch, 
and  even  money  required  by  his  daily  expenses,  if  he  wishes  to  hold 
the  innkeeper  liable.^**     These  statutes  limiting  an  innkeeper's  lia- 

150  See  the  statutes  cited  above,  note  146.     Beale  v.  Posey,  72  Ala.  323,  331. 

181  Ramaley  v.  Leland,  43  N.  Y.  539. 

168  Weisenger  v.  Taylor,  1  Bush  (Ky.)  275;  Krohn  v.  Sweeney,  2  Daly  (N. 
Y.)  200;   Noble  v.  Milliken,  74  Me.  225;    Maltby  v.  Chapman,  25  Md.  310. 

163  Murchison  v.  Sergent,  69  Ga.  206,  211. 

104  Ramaley  v.  Leland,  43  N.  Y.  539;  Hyatt  v.  Taylor,  42  N.  Y.  258;  Stew- 
art V.  Parsons,  24  Wis.  241. 


s  r.T 


57]  RIGHTS    AND    LIABILITIES INNKKIPKR's    UEN.  298 

bility  have  no  reference  to  losses  at  the  inn  occurring  before  the 
guest  has  an  opportunity  to  make  a  deposit  of  his  property,  or 
after  he  has  packed  his  trunk  and  given  notice  for  immediate  de- 
parture, etc.,  or  delivered  up  the  key  of  his  room  to  the  clerk  to 
have  his  trunk  brought  down."' 


SAME— INNKEEPER'S  LIEN. 

67.  An  innkeeper  has  a  lien,  to  secure  his  compensation, 
on  all  property  within  the  inn  which  belongs  to 
the  guest. 

Compelled  to  afford  entertainment  to  whomsoever  may  apply, 
the  law,  as  an  indemnity  for  the  extraordinary  liabilities  which  it 
imposes,  has  clothed  the  innkeeper  with  extraordinary  privileges. 
It  gives  him,  as  a  security  for  unpaid  charges,  a  lien  upon  the  prop- 
erty of  his  guest.^°®  It  was  once  held  that  he  miglit  detain  the  per- 
son of  his  guest,  but  that  doctrine  is  now  exploded.  An  innkeeper 
cannot  detain  the  person  of  his  guest,  or  take  off  his  clothes,  in 
order  to  secure  payment  of  his  bill."^  The  lien  covers  all  the  prop- 
erty belonging  to  the  guest  which  he  brings  to  the  inn.  Even 
property  which  is  exempt  from  execution  is  subject  to  an  inn- 
keeper's lien.  On  this  last  question  it  was  said,  in  an  Iowa  case:'*" 
"An  innkeeper's  lien  exists  by  common  law,  and  we  see  nothing  in 
the  statute  exempting  certain  property  from  execution  to  indicate 
an  intention  to  abrogate  the  common  law  in  this  respect.  Tlu- 
statute  exempts  only  from  general  execution.  It  was  never  de- 
signed to  prevent  persons  from  giving  a  lien  upon  whatever  prop- 
erty they  see  fit.  Where  a  lien  is  given,  it  may,  of  course,  be  en- 
forced. Had  the  plaintiff  given  a  chattel  mortgage  upon  his  coat 
to  secure  his  hotel  bill,  no  one  would  doubt  the  right  of  the  defend- 
ant to  foreclose  it,  notwithstanding  the  coat  might  have  been  u 
part  of  the  plaintiff's  ordinary  wearing  apparel.    When  the  plain 

JOB  Rosenplaenter  v.  Roessle,  54  N.  Y.  262. 

i6«  Murray  v.  Marshall,  9  Colo.  482,  13  Pac.  689;  Manning  t.  HoUenbeck. 
27  Wis.  202;   Cook  v.  Kane,  13  Or.  4S2,  11  Pac  220. 

167  Sumbolf  V.  Alford,  3  Mees.  &  W.  248. 

168  Swan  v.  Bourne,  47  Iowa,  501, 


294  INNKEEPERS.  [Ch.  6 

tiff  became  defendant's  guest  at  his  hotel,  he  gave  the  defendant  a 
lien  upon  his  coat  as  effectually  as  if  he  had  given  him  a  mortgage 
upon  it.  The  law  implied  that,  from  the  act  of  becoming  the  de- 
fendant's guest,  and  taking  his  coat  from  him." 

Goods  not  Oivned  by  Guest. 

It  is  stated  by  most  of  the  text  writers  that  an  innkeeper  has  a 
lien  on  goods  brought  to  his  house  by  a  guest,  even  though  the 
guest  is  not  the  owner.^"®  An  exception  is  admitted  when  the 
innkeeper  knew  that  the  guest  was  not  the  owner.  In  such  case 
he  is  denied  a  lien.^^°  When  the  cases  relied  upon  to  support  the 
general  proposition  that  an  innkeeper  has  a  lien  upon  the  goods 
of  a  third  person  are  examined,  it  is  found  that,  in  some  of  them, 
a  lien  has  been  allowed  for  specific  services  upon  the  chattel  on 
which  the  lien  is  claimed.  For  instance,  an  innkeeper  has  been  al- 
lowed a  lien  on  a  horse  for  his  keep,^^^  and  on  other  chattels  for 
their  storage.^*'  In  the  remaining  American  cases  there  is  a  di- 
rect conflict.  In  Pennsylvania  it  has  been  held  that  an  innkeeper 
has  no  lien  on  a  stolen  horse  left  with  him,  even  for  the  animal's 
care;^®'  and,  under  the  Missouri  statute,  an  innkeeper  has  been 
denied  a  lien  on  a  typewriter  which  was  not  the  property  of  the 
guest.^**  On  the  other  hand,  in  Cook  v.  Kane  ^°'*  it  was  held  that 
an  innkeeper  had  a  lien  on  a  piano  which  did  not  belong  to  the 
guest.  This  doctrine  has  been  assumed  in  some  other  cases,  with- 
out much  consideration.^"®     The  rule  seems  to  be  firmly  estab- 

159  Schouler,  Bailm.  (2d  Ed.)  §  326;   Edwards,  Bailm.  (3d  Ed.)  §§  474,  475. 
no  Broad  wood  v.  Granara,  10  Exch.  417.     And  see  Johnson  v.  Hill,  3  Star- 
kle,  172. 

161  Robinson  v.  Walter,  Poph.  127. 

162  Domestic  Sewing  Mach.  Co.  v.  Watters,  50  Ga.  573  (under  a  statute); 
TurreU  v.  Crawley,  18  Law  J.  Q.  B.  155;    s.  c,  13  Q.  B.  197. 

168  Gump  V.  Showalter,  43  Pa.  St.  507.  And  see  Johnson  v.  Hill,  3  Sturkie, 
172;   Turrell  v.  Crawley,  IS  Law  J.  Q.  B.  155;   s.  c,  13  Q.  B.  197. 

164  Wyckoff  V.  Southern  Hotel  Co.,  24  Mo.  App.  382.  In  the  opinion, 
Thompson,  J.,  though  he  admits  a  contrary  rule  at  common  law,  criticises  it 
In  strong  terms. 

165  13  Or.  482,  11  Pac.  226.     See  the  dissenting  opinion  of  Thayer,  J. 

166  Singer  Manuf'g  Co.  v.  Miller  (Minn.)  55  N.  W.  56;  Manning  v.  Holleu- 
beck,  27  Wis.  202;  Covington  v.  Newberger,  99  N.  C.  523.  And  see,  as  to 
a  boarding-house  keeper,  Jones  v.  Moi-rill,  42  Barb.  623. 


§    5S]  RIGHTS    AND    LIAnilJTIK? WAIVII:    OK    I.IKN.  295 

lished  in  England,^"  but  not  by  any  case  before  the  Revolution.' •• 
Still,  it  is  not  believed  that  the  authority  of  these  cases  should  be 
sufficient  to  establish  in  this  country  a  rule  so  contrary  to  all  the 
analogies  of  our  law.  In  no  other  case  is  it  possible  to  create  a 
lien  on  chattels  without  the  consent  of  the  owner,  unless  he  has 
clothed  the  one  in  possession  with  the  indicia  of  title,  or  in  some 
other  way  made  it  possible  for  him  to  defraud  third  persons.  An 
innkeeper  has  been  denied  a  lien  on  a  horse,  received  from  one  not 
shown  to  be  a  guest,  for  his  charges  for  the  care  of  the  horse.'** 
So,  a  lien  has  been  denied  on  a  wife's  separate  property  for  hur  huH 
band's  board  bill."" 
For  What  Charges. 

An  innkeeper's  lien  covers  charges  for  extras,  such  as  wines  fur- 
nished a  guest,  as  well  as  the  amounts  due  for  board  and  lodg 
ing.^^^  The  lien  is  a  general  one,  so  that  each  article  belonging 
to  the  guest  is  liable  for  the  whole  amount  due.  That  is,  there 
is  a  lien  on  a  guest's  horse,  not  only  for  the  charges  incurred  for 
the  horse  itself,  but  for  the  board,  etc.,  of  the  guest,  as  well.*" 
An  innkeeper  has  a  lien  for  entertainment  furnished  an  infant, 
when  such  entertainment  is  a  necessary  for  the  infauL*" 

SAME— WAIVER   OF  LIEN. 

58.  An  innkeeper's  lien  is  waived  by  voluntarily  parting 
with  possession. 

As  a  lien  exists  only  by  virtue  of  possession,  when  an  innkeeper 
permits  a  guest  to  take  his  goods  away  the  lien  is  gone.     To  coni- 

187  Tlirefall  v.  Berwick,  L.  R.  10  Q.  B.  210,  aflBrming  L.  li.  7  Q.  B.  711; 
Snead  v.  Watkins,  1  C.  B.  (N.  S.)  2(J7;  Mullmer  v.  Florence.  3  Q.  B.  Div.  4S4; 
Robins  v.  Gray  [1895]  Q.  B.  78. 

168  In  Robinson  v.  Walter,  I'opli.  127.  the  lien  was  for  tbe  care  of  the  hone 
on  which  the  lien  was  allowed. 

189  Fox  V.  McGrej,-or,  11  Barb.  41;  Grinnell  v.  Cook,  3  Hill.  4vS5;  BuruB  r. 
Plgot,  9  Car.  &  P.  208;   Elliott  v.  Martin   (Mich.)  G3  N.  W.  525. 

170  Mcllvane  v.  Hilton,  7  Hun.  .V.M. 

IT  1  Proctor  V.  Nicholson,  7  Car.  &  P.  07. 

172  Mulliner  v.  Florence,  L.  R.  3  Q.  B.  Div.  48-L  But  see  DomesUc  Sew- 
ing Much.  Co.  V.  Watters,  50  Ga.  573. 

17 s  Watson  v.  Cross,  2  Duv.  (Ky.)  1-17. 


296  INNKEEPERS.  [Ch.  6 

plete  the  right  of  lien,  it  Is  essential  that  the  possession  and  right 
of  possession  of  the  goods  be  continued  and  uninterrupted.  A  re- 
linquishment of  the  possession  of  property,  by  the  party  in  whose 
favor  a  lien  or  pledge  exists,  to  the  general  owner,  is  an  abandon- 
ment, and  operates  as  an  immediate  release  or  waiver  of  the 
lien.^^*  A  lien  may  perhaps  be  renewed  by  the  return  and  restitu- 
tion of  the  property;  but  in  such  case  it  will  be  subordinate  to  any 
intervening  incumbrance  to  which  the  property  in  the  meantime 
has  become  subject.^^*  It  may  well  be  that  if  the  innkeeper,  with- 
out any  fraud  being  practiced  upon  him,  accepts  a  draft  or  check 
drawn  by  his  guest  in  payment  of  his  bill,  and  voluntarily  relin- 
quishes the  possession  of  the  baggage  or  goods,  his  right  to  a  lien 
is  gone.  But  where  the  innkeeper  is  induced  to  part  with  the  pos- 
session of  the  property  through  false  and  fraudulent  representa- 
tions made  by  the  guest,  he  does  not  thereby  waive  his  lien.  It  is 
then  on  principle  analogous  to  the  case  where  a  vendor  is  induced 
to  part  with  his  goods  through  the  fraud  of  the  vendee;  the  de- 
fendant purchaser,  or  any  one  claiming  under  him,  not  being  a  bona 
fide  purchaser  for  value.^^'  Taking  security  for  the  payment  of  a 
guest's  bill  is  not  a  waiver  of  the  innkeeper's  lien,  unless  there  is  an 
agreement,  express  or  implied,  to  do  so.^''^  The  lien  is  extinguished 
by  a  tender.^''®  When  there  is  an  agreement  to  give  credit,  no  lien 
arises.^'* 

SAME— EINTFORCEMENT  O?  LIEW. 

59.  At  common  law  an  innkeeper's  lien  gives  no  right  to 
sell,  but  statutes  in  several  states  now  give  such 
power. 

IT 4  Hickman  v.  Thomas,  16  Ala.  666. 

i'5  Perkins  v.  Boardman,  14  Gray,  481.  But  see  Grinnell  v.  Cook,  3  Hill, 
485. 

17  6  Mamiing  v.  HoUenbeck,  27  Wis.  202. 

ITT  Angus  V.  McLaclilan,  L.  R.  23  Ch.  Div.  330. 

ITS  Gordon  v.  Cox,  7  Car.  &  P.  172.  And  see  Allen  v.  Smith,  12  C.  B.  CN. 
S.)  644,  where  It  is  said  that  an  innkeeper,  by  demanding  more  than  is  due, 
makes  a  tender  unnecessary. 

179  Jones  V.  Thurloe,  8  Mod.  172.  Where  an  Innkeeper  owes  his  guest  for 
labor  more  than  she  owes  for  board,  he  has  no  lien  upon  her  trunk.  Han- 
lin  V.  Walters,  3  Colo.  App.  519,  34  Pac.  686. 


§§    60-61]  TERMINATION    OF    RELATION.  297 

The  security  afforded  an  innkeeper  for  his  compensation,  by  giv- 
ing him  a  lien  on  his  guest's  goods,  carries  with  it  no  power  to  sell 
the  goods.^'"  At  common  law  his  only  remedy  is  by  an  action  to 
foreclose  the  lien.^®^  In  a  number  of  states  it  is  now  provided  by 
statute  that  the  innkeeper  may  sell  under  his  lien.^*' 

TERMINATION  OF  RELATION. 

60.  The   relation   of  innkeeper  and   guest  may  be  termi- 

nated— 

(a)  By  the  innkeeper  for  the  guest's   misconduct   or  de- 

fault in  payment  (p.  297). 

(b)  By  the  guest  at  any  time,  by  signifying  an  intention 

to  do  so  (p.  297). 

61.  When  the  relation  is  terminated,  the   innkeeper's  ex- 

ceptional liability  for  the  guest's  goods  is  at  an  end, 
except 
EXCEPTION— When   the    goods   are   left  with  the  inn- 
keeper -with  his  consent,  his  liability  continues  for 
a  reasonable  time  (p.  298). 

An  innkeeper  may  terminate  his  relation  as  such  to  his  guest 
only  for  misconduct  on  the  part  of  the  guest,^*^  or  for  the  guest's 
failure  to  pay  the  innkeeper  his  reasonable  charges.^**  The  guest, 
however,  can  terminate  the  relation  vvlienever  he  chooses.  IJut 
if  he  does  not  notify  the  innkeeper  of  his  intention  to  do  so,  he  con 
tinues  liable  for  any  charges  which  accrue.^"  Tlie  temporary 
absence  of  a  guest  does  not  terminate  the  relation  of  guest  and 

180  Case  V.  Fop?r,  46  Mo.  4-4;  Fox  v.  McGregor.  11  Barb.  (N.  Y.)  41.  43;  Jon.-s 
V.  Pearle,  1  Strange,  556. 

181  Fox  V.  McGregor,  11  Barb.  (N.  Y.)  41,  43. 

182  New  York,  Banks  &  Bros.'  Rev.  St.  (8th  lid.)  p.  1420;  PeansylvanL-i. 
Brightly,  Purd.  Dig.  tit.  "Inns,"  17;  Nevada,  Gen.  St  1885.  §  4"J6o;  Maine.  Hev. 
St.  1S83,  c.  91,  §  46;  New  Jersey,  Revision  1700-1877.  tit  "luus."  GS;  Vir- 
ginia, Code  1S87,  §  2489;  Utah,  Comp.  Laws  1888,  §  2955;  Florida.  McClel. 
Dig.  1881,  c.  114,  §  6.    1  Stim.  Am.  St  Law,  §  4393. 

183  Com.  V.  Mitchel,  2  Pars.  Eq.  Gas.  (Pa,)  431;  Markham  v.  Brown.  8  N. 
H.  523;   Howell  v.  Jackson,  6  Car.  &  P.  723;   Moriarty  v.  Brooke.  Id.  GS4. 

184  Lawrence  v.  Howard,  1  Utah,  142.    See  Schouler,  Bailm.  (2d  Ed.)  i  32a 

185  See  Miller  v.  Peoples,  60  Miss.  819. 


298  INNKEEPEES.  [Ch.  6 

innkeeper.^  ^'  But  the  relation  of  guest  and  innkeeper  is  termi- 
nated when  the  guest  pays  his  bill  and  has  his  name  stricken  from 
the  register  of  guests,  for  the  purpose  of  freeing  himself  from  lia- 
bility as  a  guest,  and  he  cannot  thereafter,  and  while  he  is  not  a 
guest,  claim  the  rights  of  one  as  to  the  baggage  he  left  behind 
him.^*''  The  expectation  thereafter  to  become  a  guest  did  not  con- 
tinue the  relation,  terminated  at  his  instance, and  for  his  advantage, 
by  settling  his  account  for  entertainment.  An  innkeeper  is  charge- 
able as  such  because  of  the  profit  derivable  from  entertaining. 
The  right  to  charge  is  the  criterion  of  the  innkeeper's  liability. 
When  the  liability  of  the  guest  to  be  charged  as  such  ceases,  his 
claim  on  the  innkeeper  as  such  expires,  subject  only  to  the  right 
to  hold  him  responsible  for  the  baggage  of  the  guest  for  such  time 
as  may  be  reasonable  to  effect  a  removal,  to  be  determined  by  cir- 
cumstances.^*^ 
Linhility  after  relation  is  terminated. 

It  is  said,  generally,  that  after  the  relation  of  guest  ceases  the 
innkeeper  appears  liable  only  as  an  ordinary  bailee,  gratuitous  or 
otherwise,  for  the  inanimate  goods  his  departing  guest  may  have 
left  in  his  care,  unless  strict  proof  be  furnished  of  a  different  un- 
derstanding.^*®    Mr.  Wharton,  in  his  work  on  the  Law  of  Negli- 

i86Towson  V.  Havre  de  Grace  Bank,  6  Har.  &  J.  (ild.)  47;  Whitemore  v. 
Haroldson,  2  Lea  (Teun.)  312;  ^McDonald  v.  Edgerton,  5  Barb.  (N.  Y.)  560; 
Allen  V.  Smith,  12  C.  B.  (N.  S.)  638.  One  does  not  cease  to  be  a  guest  of  an 
innkeeper  by  going  out  to  dine  or  lodge  with  a  friend,  or  by  any  other  tem- 
poi-ary  absence.  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  4S5.  Where  a  person  takes 
a  room  at  an  inn  and  leaves  his  effects  there,  and  makes  the  inn  his  prin- 
cipal abiding  place,  he  does  not  cease  to  be  a  guest  merely  because  he  is 
occasionally  absent  from  the  inn  and  sometimes  takes  his  meals  elsewhere. 
McDaniels  v.  Robinson,  26  Vt.  316,  28  Vt.  387. 

187  :Miller  v.  Peeples,  60  Miss.  819.  Where  a  guest,  on  leaving  an  hotel, 
without  the  intention  of  retiirning  as  a  guest,  but  without  paying  his  bill, 
leaves  his  valise  in  the  charge  of  the  clerk,  and  returns  within  48  hours,  the 
innkeeper  is  liable  as  a  bailee  for  want  of  ordinary  care,  and  the  loss  of  the 
valise  i-aises  a  presumption  of  negligence  against  him.  Murray  v.  Marshall, 
9  Colo.  482,  13  Pac.  589. 

188  Miller  v.  Peeples,  60  Miss.  819;  :Maxwell  v.  Gerard,  84  Hun,  537,  32  N. 
Y.  Supp.  849.  By  leaving  a  horse  with  an  innkeeper  after  the  guest  has  de- 
parted, the  relation  of  innkeeper  and  guest  is  not  continued  so  as  to  render 
the  former  liable  as  such  for  a  sum  of  money  left  with  him  by  the  latter 
while  stopping  at  his  house.    McDaniels  v.  Robinson,  28  Vt  387. 

189  Murray  v,  Clarke,  2  Daly,  102;   Adams  v.  Clem,  41  Ga.  65. 


§    62]  INNKEEPERS    AS    ORDINARY    BAILEES.  299 

gence,*""  says:  "It  is  an  interesting  question  how  long,  wiun  a 
guest  leaves  his  baggage  with  an  innkeeper,  the  innkeeper  is  lia 
ble  as  innkeeper  for  such.  Judging  from  the  analogy  obtaining  hh 
to  common  carriers,  we  would  conclude  that  the  exceptional  and 
onerous  insurance  liability  of  the  innkeeper  would  not  continue 
after  the  guest  had  permanently  left  the  inn,  allowing,  of  course, 
for  a  few  hours  which  may  be  necessary  for  porters  to  effect  a  re- 
moval." *"^  Thus,  if  a  guest,  intending  to  leave  the  hotel,  in- 
trusts his  baggage  to  a  porter  of  the  hotel,  whose  duty  it  is  to  de- 
liver the  baggage  at  the  depot,  the  relation  is  continued  until  the  de- 
livery at  the  designated  place. ^"^ 

INNKEEPERS  AS  ORDINARY  BAILEES. 

62.  An  innkeeper  may  be  an  ordinary  bailee  of  property 
in  his  charge.     His  liability  is  that 

(a)  Of  an  ordinary  bailee  for  hire  (p.  299). 

(1)  For  goods  of  a  guest  kept  for  show  or  sale. 

(2)  For  goods  held  under  his  lien  for  charges. 

(3)  For  goods  of  boarders. 

(b)  Of  a  gratuitous  bailee  (p.  300). 

(1)  For  goods   left   an  unreasonable  time  by  a  de- 

parting guest. 

(2)  For  goods  deposited  by  one  not  a  guest,  to  be 

kept  -without  compensation. 

As  Ordinary  Bailees  for  Hire. 

An  innkeeper  may  be  a  bailee  of  goods  without  being  subject  to 
the  exceptional  liability  of  an  innkeeper  as  such.  In  such  cases 
his  rights  and  liabilities  are  measured  by  the  rules  applicable  to 
the  different  classes  of  ordinary  bailments.  The  cases  most  fre- 
quently arising  have  been  enumerated  in  the  black  letter.  It  has 
already  been  seen  '°''  that  the  exceptional  liability  of  an  innkeei)er 
does  not  attach  to  goods  kept  by  a  guest  for  show  or  sale.     As  to 

i»o  Section  687. 

191  Murray  v.  Marshall,  9  Colo.  482,  13  Pac.  589. 

192  Glenn  v.  Jackson,  93  Ala.  342,  9  South.  2.19;  Sasseen  v.  Clnrk.  37  Ga. 
242;  Dickenson  v.  Winchester.  4  Cush.  114.  Anrl  so.  where  bauiraKe  is  taken 
to  the  wrons  boat  by  the  innkeeper's  servant,  and  so  losu  Giles  v.  Fauuiie- 
roy,  13  .Md.  126. 

183  Ante,  p.  287. 


300  INNKEEPERS.  [Ch.  G 

such  goods  the  innkeeper  is  liable  only  as  an  ordinary  bailee  for 
hire,  and  bound  to  use  ordinary  diligence.^®*  His  liability  is  the 
same  for  goods  which  he  holds  under  his  lien,^*°  and  for  the  goods 
of  those  who  reside  at  the  inn  as  boarders  rather  than  as  guests/'* 
As  Gratuiious  Bailees. 

Aju  innkeeper  may  be  a  mere  gratuitous  bailee,  and  as  such 
bound  to  use  only  slight  diligence.  The  most  usual  cases  of  this 
kind  are  where  one  who  has  been  a  guest  leaves  goods  with  the 
innkeeper  for  more  than  a  reasonable  length  of  time  after  his  de- 
parture from  the  inn.^^''  Another  case  in  which  an  innkeeper  be- 
comes a  gratuitous  bailee  arises  when  goods  are  left  in  his  charge 
by  one  who  does  not  become  a  guest  at  all,  and  no  agreement  is 
made  that  the  innkeeper  shall  receive  compensation  for  the  care  of 
the  goods.^'* 

194  Fisher  v.  Kelsey,  121  U.  S.  383,  7  Sup.  Ct.  929;  Myers  v.  Cottrill,  5 
Biss.  465,  Fed.  Cas.  No.  9,985;  Mowers  v.  Fetliers,  61  N.  Y.  34;  Needles  v. 
Howard,  1  E.  D.  Smith.  54,  61;  Carter  v,  Hobbs,  12  Mich.  52;  Neal  v.  WU- 
cox,  4  Jones,  Law  (N.  C.)  146. 

195  Murray  v.  Marshall,  9  Colo.  482,  13  Pac.  589;  Giles  v.  Fauntleroy,  13 
Md.  126;    Murray  v.  Clarke,  2  Daly.  102. 

196  Lawrence  v.  Howard,  1  Utah,  143.  And  see  Mowers  v.  Fethers,  61  N. 
Y.  34.  So,  as  to  person  receiviug  entertaiumeut  at  a  bail.  Carter  v.  Hobbs, 
12  Mich.  52.  And  see  ante,  p.  2Go.  An  hotel  keeper  in  whose  safe  a  regular 
boarder  deposits  money  for  safe-keeping  is,  at  most,  a  bailee  for  hire,  and  is 
not  liable  therefor  where  his  night  clerk  steals  the  money  from  the  safe,  in 
the  absence  of  any  proof  of  want  of  ordinary  care  in  employing  him.  Taylor 
V.  Downey  (Mich.)  62  N.  W.  716.  An  innkeeper  is  not  liable  for  loss  of 
boarder's  baggage  and  other  valuables  by  fire,  not  shown  to  have  been  caus- 
ed by  the  negligence  of  the  innkeeper  or  his  servants.  Mooi-e  v.  Long  Beach 
Development  Co.,  87  Cal.  483,  26  Pac.  92.  He  is  not  responsible,  except  as 
an  ordinary  bailee  for  hire,  for  the  safe-keeping  of  a  horse  left  in  his  stable 
for  the  night  by  one  who  is  neither  a  lodger  nor  a  guest,  the  stable  having 
been  consumed  by  fire,  without  negligence  on  his  part.  Ingallsbee  v.  Wood. 
33  N.  Y.  577.  An  innkeeper  is  not  an  insurer  of  the  safety  of  baggage  de- 
livered to  him  to  be  held  as  a  pledge  for  money  loaned,  or  for  accommoda- 
tion, by  a  guest,  after  he  has  severed  his  personal  connection  with  the  hotel 
by  surrendering  his  room  and  paying  his  bill.  Wear  v.  Gleasou,  52  Ark.  364, 
12  S.  W.  756. 

197  Miller  v.  Peeples,  60  Miss.  819;  O'Brien  v.  Vaill,  22  Fla.  627,  1  South. 
137;  Whitemore  v.  Haroldson,  2  Lea  (Tenn.)  312.  But  see  Murray  v.  Mar- 
shall, 9  Colo.  482,  13  Pac.  589;  Adams  v.  Clem,  41  Ga.  65. 

198  Wiser  v.  Chesley,  53  Mo.  547;  Stewart  v.  Head,  70  Ga.  449;  Lawrence 
v.  Howard,  1  Utah,  142. 


§§  63-64] 


CARRIBRa   OF  QOODB. 


801 


CHAPTER  VII. 

CARRIERS   OF   GOODS. 

63-64.  Prlrate  CaiTlers. 

65.  Common  Carriers. 

68.  Essential  Characteristics. 
67-68.  When  Liability  Attaches. 

69.  Rights  and  Liabilities. 
70-75.  Duty  to  Carry  for  All. 

76.  Duty  to  Furuish  Equal  Facilities  to  AIL 

77.  Right  to  Compensatiou. 

78.  Discrimination. 

79.  Lien. 

80.  Liability  for  Los«i  or  Damage. 
81-82.  As  Insurers. 

83.  Carriers  of  Live  Slock. 

84.  Carriers  of  Baggage. 

85.  As  Ordinary  Bailees. 
80-87.  Liability  for  Delay. 

88.  Special  Property  of  Carrier— Right  of  Action. 

89.  Special  Contract. 

90-91.  Contracts  Limiting  Liability. 

92-94.  Notices  Limiting  Liability. 

95.  Termination  of  Liability  as  Common  Carrier. 

96.  Delivery  to  Consignee. 

97.  Delivery  to  Connecting  Carrier. 

98.  Excuses  for  Nondelivery. 
99-100.  Post-Office  Department. 


PRIVATE  CARRIERS. 


63.  A  private  carrier  is  one  •who,  w^ithout  being  engaged 

in  such  business  as  a  public  employment,  under- 
takes to  transport  and  deliver  goods  in  a  particu- 
lar instance. 

64.  Private  carriers  may  be  either — 

(a)  Without  hire  (p.  302),  or 

(b)  For  hire  (p.  302). 


302  CARRIERS    OF   GOODS.  [Cll.  7 

Carriers  without  Hire. 

Every  one  who  transports  another's  goods  from  place  to  place 
without  actual  or  contemplated  reward  is  a  private  carrier.^  As 
will  be  seen,  compensation  for  the  carriage  is  always  essential,  to 
constitute  one  a  common  carrier.^  A  bailment  for  gratuitous  car- 
riage is  simply  a  mandate.  The  carrier  is  a  mandatary,  and,  as 
such,  the  rights  and  liabilities  of  the  parties  have  already  been  suf- 
ficiently considered  in  the  chapter  on  "Bailments  for  the  Sole  Bene- 
fit of  the  Bailor." « 

Private  Carriers  for  Hire. 

"Private  carriers  for  hire  are  such  as  make  no  public  profession 
that  they  will  carry  for  all  who  apply,  but  who  occasionally,  or 
upon  the  particular  occasion,  undertake,  for  compensation,  to  carry 
the  goods  of  others  upon  such  terms  as  may  be  agreed  upon."  * 
Where  goods  are  carried  by  a  private  carrier  for  a  compensation, 
the  bailment  is,  in  all  respects,  a  hiring  of  labor  and  services  about 
a  chattel.  In  the  Roman  terminology,  such  bailments  are  called 
"locatio  mercium  operis  vehendarum."  All  the  principles  discussed 
in  relation  to  hired  services  in  the  chapter  on  "Hiring"  are  equally 
applicable  here,** 

Same — Lmbility  for  Negligence. 

As  in  other  cases  of  bailments  for  hired  rervices,  a  private  carrier 
for  hire  must  exercise  reasonable  diligence  in  the  performance  of 
his  undertaking.^  He  must  exercise  such  care  and  diligence  as  a 
reasonably  prudent  man  would  exercise  in  the  conduct  of  his  own 
business,  or  in  the  preservation  of  his  own  property.^  He  is  lia- 
ble for  ordinary  neglect*     What  is  due  care  must  be  determined, 

1  Hutch.  Carr.  §  16. 

2  See  post,  p.  308, 
8  See  ante,  p.  40. 

*  Hutch.  Carr.  §  35.    And  see  Pennewill  v.  Cullen,  5  Har.  (Del.)  288. 

5  See  ante,  p.  212. 

c  Story,  Bailm,  §  399;  Ang.  Carr.  §  47;  Ames  v.  Belden,  17  Barb.  513,  517: 
Samms  v.  Stewart,  20  Ohio,  70,  73. 

1  U.  S.  v.  Power,  6  Mont  271,  273,  12  Pac.  639. 

8  White  V.  Bascom,  28  Vt.  2G8;  Varble  v.  Bigley,  14  Bush  (Ky.)  698;  Penne- 
will V.  Cullen,  5  Har.  (DeL)  238;  Forsythe  v.  Walker,  9  Pa.  St.  148;  Baird  t. 


§§   63-64]  PRIVATE    CARRIERS.  308 

as  has  been  repeatedly  stated,  with  a  view  to  all  the  circumstances. 
Just  here  lies  the  most  essential  distinction  between  private  and 
common  carriers.  Private  carriers  are  liable  only  for  bad  faith  or 
negligence,  while  ordinarily,  as  will  be  seen,  the  presence  or  ab- 
sence of  negligence  is  wholly  immaterial  in  actions  to  charge  com- 
mon carriei*s  with  liability  for  a  loss  or  damage  to  goods  intrusted 
to  them.®  So,  also,  private  carriers  may  stipulate  against  liability 
for  negligence;  ^^  common  carriers  cannot.^* 

Same — Theft  or  Robbery. 

Likewise,  private  carriers  are  not  liable  for  losses  caused  by  theft 
or  robbery  unless  their  negligence  contributed  to  the  loss,  while 
common  carriers  are  liable  irrespective  of  negligence.^* 

Same — lyien. 

It  would  seem  that  private  carriers  ought  to  have  a  lien  on  the 
goods  carried  for  their  compensation.  But  the  point  is  not  settled. 
It  is  true  that  the  carriage  may  not  have  conferred  any  additional 
value  upon  the  goods,  upon  which  ground  a  bailee's  lien  is  usually 
rested;  but  neither  does  a  warehouseman,  whose  lien  is  conceded. 
Most  text  writers  agree  that  a  private  carrier  should  have  a  lien 
for  his  charges.^^ 

DaJy,  57  N.  T.  236,  246;  Bush  v.  Miller,  13  Barb.  481,  4S8;  Stannard  v.  Trince. 
04  N.  Y.  300;  Roberts  v.  Turner,  12  Johns.  232;  Piatt  v.  Ilibbard.  7  Cow. 
497;  Brown  v.  Denison,  2  Wend.  593;  Holtzclaw  v.  Dull,  27  Mo.  392;  Beck 
V.  Evans,  16  East,  244.    See  ante,  p.  23.J. 

0  See  post,  p.  401. 

i'i  Vv'eUs  v.  Steam  Nav.  Co.,  2  N.  Y.  204;  Alexander  v.  Greene,  3  Hill,  9; 
riutr-li.  Carr.  §  40.    See  ante,  p.  27. 

1 1  S'oe  post,  p.  413. 

12  See  post  p.  401. 

13  "Upon  general  principles,  there  seems  to  be  no  reason  why  a  private 
carrier  should  not  have  a  lien  for  performing  services  similar  to  those  reu- 
dered  by  a  public  carrier."  1  Jones,  Liens,  §  276.  See  Riddle  v.  Railroad  Co.. 
1  Inter  St  Commerce  Com.  R.  51>4.  604.  Mr.  Hutchinson  (Carriers,  §  46) 
cites  Fuller  v.  Bradley,  25  Pa.  St  120,  as  denying  a  private  carrier  a  lien, 
but  the  case  does  not  sustain  that  view.  In  that  case  the  defendant  liad 
hired  to  plaintiff  his  boat  and  his  services  for  a  certain  trip,  and  had  put 
himself  and  vessel  under  the  latter's  control.  He  was  to  be  paid  by  the  day. 
It  is  clear  he  was  not  a  bailee  at  all,  but  simply  a  servant 


304  CARRIERS    OF    GOODS,  [Ch.  7 

COMMOW  CARRIERS. 

65.  A  common  carrier  is  one  -who  undertakes,  in  the  ex- 

ercise of  a  public  calling,  to  carry  goods,  for  hire, 
for  •whomsoever  may  employ  him. 

SAME— ESSENTIAL  CHARACTERISTICS. 

66,  'The   follo\ving   are   the   essential   characteristics  of   a 

common  carrier: 

(a)  The  employment  must  be   public  and   habitual,  and 

not  merely  casual  or  occasional  (p.  304). 

(b)  An  action  must  lie  for  a  refusal  to  carry  (p.  308). 

(c)  The  carriage  must  be  for  a  consideration  (p.  308). 

Public  and  Habitual  Employment. 

A  "common  carrier"  was  defined  in  Gisbourn  v.  Hurst  ^*  to  be 
"any  man  undertaking,  for  hire,  to  carrj'  the  goods  of  all  persons, 
indifferently,"  and  in  D wight  v.  Brewster  ^°  to  be  "one  who  un- 
dertakes, for  hire  or  reward,  to  transport  the  goods  of  such  as 
choose  to  employ  him,  from  place  to  place."  In  Orange  Bank  v. 
Brown, ^*  Chief  Justice  Savage  said:  "Every  person  who  under- 
takes to  carry,  for  a  compensation,  the  goods  of  all  persons,  in- 
differently, is,  as  to  the  liability  imposed,  to  be  considered  a  com- 
mon carrier."  "Tlie  distinction  between  a  common  carrier  and  a 
private  or  special  carrier  is  that  the  former  holds  himself  out  in 
common — that  is,  to  all  persons  who  choose  to  employ  him — as 
ready  to  carry  for  hire,  while  the  latter  agrees,  in  some  special 
case,  with  some  private  individual,  to  carry  for  hire."  ^''  The  em- 
ployment of  a  common  carrier  is  a  public  one,  and  he  assumes  a 
public  duty,  and  is  bound  to  receive  and  carry  the  goods  of  any 
one  who  offers.  "On  the  whole,"  says  Prof.  Parsons,  "it  seems  to 
be  clear  that  no  one  can  be  considered  as  a  common  carrier  unless 
he  has  in  some  way  held  himslf  out  to  the  public  as  a  carrier,  in 

14  1  Salk.  249.  »«  3  Wend.  158,  161. 

i«  1  Pick.  50,  53.  i»  2  Story,  Oont  (5tli  Ed.)  {  9ia 


§    66  ESSENTIAL    CnARACTEKISTICS.  305 

such  maimer  as  to  render  him  liable  to  an  action  if  he  should  refuse 
to  carry  for  any  one  who  wished  to  employ  him."  ^*  The  chief 
test  by  which  to  determine  whether  one  is  a  common  carrier  or  not 
is  to  ascertain  "whether  he  holds  out,  either  expressly  or  by  a  course 
of  conduct,  that  he  will  carry  for  hire,  so  long  as  he  has  room,  tho 
goods  of  all  persons,  indifferently,  who  send  him_goods  to  be  car- 
ried.  The  test  is  not  whether  he  is  carrying  as  a  public  employ- 
ment,~or  whether  he  carries  to  a  fixed  place,  but  whether  he  holds 
out,  either  expressly  or  by  a  course  of  conduct,  that  he  will  carry 
for  hire,  so  long  as  he  has  room,  the  goods  of  all  persons,  indiffer- 
ently, who  send  him  goods  to  be  carried."  ^°  If  he  does  so  hold 
himself  out,  he  is  a  common  carrier.  If  he  does  not,  he  is  not  a 
common  carrier.  "The  criterion  is  whether  he  carries  for  particular 
persons  only,  or  whether_he_carries  for  every  one.  If  a  man  hold 
himself  out  to  do  it  for  every  one  who  asks  him,  he  is  a  common 
carrier;  but  if  he  does  not  do  it  for  every  one,  but  carries  for  you 
or  me  only,  that  is  a  matter  of  special  contract."  ***  This  doctrine 
is  supported  by  the  overwhelming  weight  of  authority,  both  in  this 
country  ^^  and  in  England,^-  though  a  few  American  cases  hold  a 

18  2  Pars.  Cont.  (8th  Ed.)  175,  note. 

19  Nugent  V.  Smith,  1  C.  P.  Div.  19,  423. 

20  Ingate  v.  Christie,  3  Car.  &  K.  61.  See,  also,  2  Kent,  Comm.  598;  Story, 
Bailm.  §  495;  Fish  v.  Chapman,  2  Ga.  349;  Varble  v.  Bigley,  14  Bush  (Ky.) 
698;    Schloss  v.  Wood,  11  Colo.  287,  17  Pac.  910. 

21  Fish  V.  Clark,  2  Laus.  176,  49  N.  Y.  122;  Alien  v.  Sackrider,  37  N.  Y.  341; 
Fish  V.  Chapman,  2  Ga.  349;  Piedmont  Manuf'g  Co.  v.  Columbia  «&  G.  R.  Co., 
19  S.  C.  553;  Bank  of  Orange  v.  Brown,  3  Wend.  (N.  Y.)  158,  161;  Satterlee 
V.  Groat,  1  Wend.  272;  Chevallier  v.  Straham,  2  Tex.  115;  Samms  v.  Stew- 
art, 20  Ohio,  70;  Harrison  v.  Roy,  39  Miss.  39(>;  Mershon  v.  Hobensack,  22 
N.  J.  Law,  372;  Vemer  v.  Sweitzer,  32  Pa.  St.  208;  McCluros  v.  Hammond, 
1  Bay  (S.  C.)  99;  The  Dan,  40  Fed.  691;  Doty  v.  Strong,  1  Pin.  (Wis.)  313. 
In  Steele  v.  McTyre,  31  Ala.  6(J7,  it  appeared  that  defendant  built  a  flatboat 
and  started  down  the  river  to  Mobile,  taking  on  cotton  from  several  persons 
at  their  respective  landings,  and  intending  to  sell  the  boat  at  Mobile.  The 
boat  struck  a  log  in  the  river,  and,  in  an  action  for  the  value  of  the  cotton 


22  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  1  Smith,  Lead.  Cas.  EJq.  283,  and 
notes;  Lane  v.  Cotton,  1  Ld.  Raym.  646,  651;  Forward  v.  Pittard,  1  Term  R, 
27;  Nugent  v.  Smith,  1  C.  P.  Div.  19;  Palmer  v.  Railway  Co,  4  Mees.  &  W. 
749;   Riley  v.  Home,  5  Bing.  217,  220. 

LAW  BAILM. — 20 


306  CARRIERS    OF    GOODS.  [Ch.  7 

contrary  doctrine.^^  Within  this  rule,  one  who  holds  himself  forth 
to  the  public  to  carry  for  hire  is  as  much  a  common  carrier  on  his 
first  trip  as  on  any  subsequent  one.^*  Nor  is  it  necessary  that  one 
be  engaged  continuously  or  exclusively  in  the  business  of  car- 
riage.^°     If  a  farmer,  at  certain  seasons  of  the  year  only,  as  when 

lost,  the  court  said:  "If  the  appellants  [the  defendants]  built  or  procured  a 
flatboat,  with  which  to  carry  cotton  down  the  Cahauba  river,  and  thence  to 
Mobile,  though  only  for  a  single  trip,  and  held  themselves  out  as  ready  and 
willing  to  carry  cotton  on  their  boat  for  the  people  generally  who  wished 
to  send  their  cotton  to  Mobile,  then  they  would  be  common  carriers;  and 
those  who  placed  cotton  upon  the  boat  could  not  be  atfected  by  any  private 
instructions  which  might  have  been  given  to  the  master  of  the  boat  as  to  the 
point  on  the  river  above  which  he  was  to  take  on  no  cotton.  On  the  con- 
trary, if  the  appellants  did  not  hold  themselves  out  as  ready  and  willing  to 
cari-y  cotton  for  the  public  generally,  to  the  extent  of  a  proper  load  of  the 
boat,  or,  in  other  words,  did  not  constitute  themselves  the  servants  of  the 
public  in  that  business,  but  only  proposed  to  take  the  cotton  of  some  particu- 
lar persons  with  whom  engagements  were  made,  they  were  not  common  car- 
riers. If  the  appellants,  having  engaged  a  part  of  the  loading  for  the  boat, 
held  themselves  out  as  ready  to  carry  for  any  person  or  persons  to  the  extent 
of  the  remaining  capacity  of  the  boat,  then  they  would  be  liable  as  common 
carriers  to  such  persons  as  availed  themselves  of  such  offer  of  their  services 
to  the  public  geuei-ally  as  carriei-s.  These  questions,  under  the  proof,  should 
have  been  left  to  the  jury." 

2  3  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Pa.)  285,  287;  Steinman  v.  Wilkius, 
7  Watts  &  S.  (Pa.)  466,  468;  Moss  v.  Bettis,  4  Heisk.  (Tenn.)  661;  post,  p. 
307. 

2  4  Fuller  V.  Bradley,  25  Pa.  St.  120;    Steele  v.  Mciyre,  31  Ala.  667. 

2  5  The  Niagara  v.  Cordes,  21  How.  (U.  S.)  7;  D wight  v.  Brewster,  1  Pick 
50,  53.  "It  is  true  that  common  carriers  undertake  generally,  and  not  as  a 
casual  occupation,  and  for  all  people  indifferently;  but,  in  order  to  make  them 
such,  it  is  not  necessaiy  that  this  should  be  their  exclusive  business,  or  that 
they  should  be  continuously  or  regularly  employed  in  it.  They  may  combine 
it  with  another  and  several  avocations,  and  yet  be  common  carriers,  subject 
to  the  extraordinary  liabilities  which  have  been  imposed  upon  them  in  conse- 
quence of  the  public  nature  of  their  employment."  Moss  v.  Bettis,  4  Heisk. 
(Tenn.)  661.  All  persons  who  transport  goods  from  place  to  place  for  hire, 
for  such  persons  as  see  fit  to  employ  them,  whether  usually  or  occasionally, 
whether  as  a  principal,  or  an  incidental  and  subordinate,  occupation,  are  com- 
mon carriers,  and  incur  all  their  responsibilities.  Chevallier  v.  Straham,  2 
Tex.  115.  "The  distinctive  characteristic  of  a  common  carrier  is  that  he 
transports  goods  for  hire  for  the  public  generally,  and  it  is  immaterial  wheth- 


§    6G  ESSENTIAL    CHARACTERISTICS.  307 

his  crops  are  laid  by,  offers  to  carry  for  any  one  wlio  will  employ 
him,  he  is  a  common  carrier  while  engaged  in  such  carriage.*'  But 
if  he  should  not  offer  to  carry  for  all,  but  should  make  special  con- 
tracts of  carriage,  he  would  be  simply  a  private  carrier. 

Same — Contra  Cases. 

In  Gordon  v.  Hutchinson  "  it  was  held  that  a  wagoner  carrying 
goods  for  hire  is  a  common  carrier,  though  that  is  not  his  principal 
business,  but  only  an  occasional  and  incidental  employment.  In 
that  case  it  appeared  that  the  defendant  was  a  farmer,  and  was  go- 
ing to  Bellefonte  with  a  load,  and  applied  to  the  plaintiff  for  the 
hauling  of  a  load  of  goods  for  him  on  the  return  trip,  and  re- 
ceived an  order  to  do  so.  A  portion  of  the  goods  was  lost,  and  the 
question  arose  whether  the  wagoner  was  liable  as  a  common  carrier, 
or  only  for  negligence.  The  learned  judge,  in  holding  the  defendant 
to  be  a  common  carrier,  admitted  that  the  rule  was  different  in 
England,  but  thought  that  the  English  rule  was  not  applicable  to 
our  situation.  A  similar  rule  has  been  established  in  Tennessee  in 
regard  to  carriers  by  river  craft,^*  but  with  respect  to  other  carriers 
the  general  rule  prevails  in  that  state-^**  In  no  other  states  has  the 
doctrine  established  in  Pennsylvania  been  adopted.^" 

er  this  is  his  usual  or  occasional  occupation,  his  principal  or  subordinate  pur- 
suit. •  •  ♦  There  are  no  grounds,  In  reason,  why  the  occasional  carrier, 
who,  periodically,  in  every  recurring  year,  abandons  his  other  pursuits,  and 
assumes  that  of  transporting  goods  for  the  public,  should  be  exempted  from 
any  of  the  risks  incurred  by  those  who  make  the  carrying  business  their  con- 
stant or  principal  occupation.  For  the  time  being,  he  shares  all  the  advan- 
tages arising  from  the  business,  and,  a-s  the  extraordinary  responsibilities  of 
a  common  carrier  are  imposed  by  the  policy,  and  not  the  justice,  of  the  law, 
this  policy  should  be  uniform  in  its  operation,  imparting  equal  benefits,  and 
inflicting  the  like  burdens  upon  all  who  assume  the  capacity  of  public  carriers, 
whether  temporarily  or  permanently,  periodicallj  or  continuously."     Id. 

2  6  See  Moss  v.  Bettis,  4  Heisk.  (Tenn.)  661.  Cf.  Fish  v.  Clark,  2  Lans.  170, 
49  N.  Y.  122.    And  see  Steele  v.  McTyre.  31  Ala.  0(57. 

2  7  1  Watts  &  S.  (Pa.)  285. 

2  8  Moss  V.  Bettis,  4  Heisk.  (Tenn.)  001.  Cf.  Steele  v.  McTyre,  31  Ala.  667, 
citing,  inter  alia,  Craig  v.  Childress,  Peck  (Tenn.)  270;  Johnson  v.  I-Mar,  4 
Yerg.  48;  Gordon  v.  Buchanan,  5  Yerg.  71;  Tumey  v.  Wilson,  7  Yerg.  340. 
These  cases  are  commented  on  in  Hutch.  Carr.  §  52,  note  2. 

2  9  Walker  v.  Skipwith,  Meigs  (Tenn.)  502,  504. 

3  0  Hutch.  Carr.  §  53. 


308  CAERIERS    OF    GOODS.  [Oh.   7 

Action  for  Refusal  to  Carry. 

It  follows  as  a  corollary  from  the  proposition  that  the  business 
of  carrying  goods  must  be  public  and  habitual,  to  render  one  a 
common  carrier,  that  an  action  must  lie  against  a  common  carrier 
for  an  unreasonable  refusal  to  receive  and  transport  goods  ten 
dered  him  for  carriage.'^  Indeed,  this  is  frequently  proposed  as 
the  best  test  of  whether  one  is  a  common  carrier  or  not.  Thus,  in 
Fish  V,  Chapman  '^  it  is  said:  "One  of  the  obligations  of  a  common 
carrier,  as  we  have  seen,  is  to  carry  the  goods  of  any  person  of- 
fering to  pay  his  hire.  With  certain  specific  limitations,  this  is  the 
rule.  If  he  refuse  to  carry,  he  is  liable  to  be  sued,  and  to  respond 
in  damages  to  the  person  aggrieved;  and  this  is,  perhaps,  the  safest 
test  of  his  character,"  '^ 

Carriage  must  be  for  Hire. 

To  render  one  a  common  carrier,  it  is  essential  that  the  carriage 
should  have  been  undertaken  for  a  consideration.^*  Where  no  con- 
sideration is  paid  in  a  particular  case  for  the  carriage  of  goods, 
the  carrier,  though  regularly  engaged  in  the  business  of  carrying 
goods  for  hire  for  the  public  generally,  is  not,  in  that  particular 
case,  a  common  carrier.  Justice  Story  said:^"^  "I  take  it  to  be 
exceedingly  clear  that  no  person  is  a  common  carrier,  in  the  sense 
of  the  law,  who  is  not  a  carrier  for  hire;  that  is,  who  does  not  re- 
ceive, or  is  not  entitled  to  receive,  any  recompense  for  his  services. 
The  known  definition  of  a  'common  carrier,'  in  all  our  books,  fully 
establishes  this  result.  If  no  hire  or  recompense  is  payable  ex 
debito  justitiae,  but  something  is  bestowed  as  a  mere  gratuity  or 

«i  Nugent  V.  Smith,  1  C.  P.  Div.  19;  Doty  v.  Strong,  1  Pin.  (Wis.)  313; 
Wheeler  v.  Railroad  Co.,  31  Cal.  46;  Piedmont  Manuf  g  Co.  v.  Columbia  &  G. 
R.  Co.,  19  S.  C.  353;  Maybin  v.  Railroad  Co.,  8  Rich.  Law  (S.  a)  240;  Ayres 
V.  Railway  Co.,  71  Wis.  372,  37  N.  W.  432;  Avinger  v.  Railway  Co.  (S.  a)  7 
S.  E.  493. 

32  2  Ga.  349,  354, 

8  8  If  the  charter  of  a  corporation  required  it  to  carry  for  all  who  offered,  the 
corporation  would  be,  ipso  facto,  a  common  caiTier;  but,  in  the  case  of  an  in- 
dividual, it  is  necessary  to  ascertain,  first,  whether  he  is  a  common  carrier, 
before  we  can  say  whether  or  not  he  is  liable  for  refusal  to  carry. 

8*  Littlejohn  v.  Jones,  2  McMul.  (S.  C.)  3G5,  3GG;    Self  v.  Dunn,  42  Ga.  528. 

8  5  Citizens'  Bank  v.  Nantucket  Steam-Boat  Co.,  2  Story,  IG,  Fed.  Cas.  No. 
2,730. 


>?    06  ESSENTIAL    CHABACTERISTICS.  309 

voluntary  gift,  then,  although  the  party  may  transport  either  per- 
sons or  property,  he  is  not,  in  the  sense  of  the  law,  a  common  car- 
rier, but  he  is  a  mere  mandatary  or  gratuitous  bailee;  and,  of 
course,  his  rights,  duties,  and  liabilities  are  of  a  very  different  na- 
ture and  character  from  those  of  a  common  carrier."  *  *  *  I 
agree  that  it  is  not  necessary  that  the  compensation  should  be  a 
fixed  sum,  or  known  as  'freight';  for  it  will  be  sufficient  if  a  hire 
or  recompense  is  to  be  paid  for  the  service,  in  the  nature  of  a  quan- 
tum meruit,  to  or  for  the  benefit  of  the  company.  And  I  further 
agree  that  it  is  by  no  means  necessary  that,  if  a  hire  or  freight 
is  to  be  paid,  the  goods  or  merchandise  or  money  or  other  property 
should  be  entered  upon  any  freight  list,  or  the  contract  be  verified 
by  any  v^ritten  memorandum.  But  the  existence  or  nonexistence 
of  such  circumstances  may  nevertheless  be  very  important  in- 
gredients in  ascertaining  what  the  true  understanding  of  the  par- 
ties is,  as  to  the  character  of  the  bailment."  But  the  compensation 
need  not  be  direct. ^^  If  the  carriage  is  incident  to  some  other  serv- 
ice, for  which  compensation  is  paid  or  to  be  paid,  no  separate  or 
special  compensation  is  necessary. 

"The  price  paid  by  the  passenger  for  his  fare,  with  liberty,  at  his 
discretion,  to  carry  with  him  a  certain  amount  of  baggage,  is,  in 
effect,  a  gross  average  sum  paid  for  the  transportation  of  himself 
and  of  the  ordinary  weight  of  baggage.  As  the  baggage  is  thus 
transported  by  a  common  carrier,  and  for  a  compensation,  whether 
paid  distinctly  on  that  account  or  not,  the  general  principle  of  this 
title  of  our  law  of  bailment  makes  him  liable  for  all  losses  not  aris- 
ing from  the  act  of  God  or  the  public  enemy."  '^  But  a  carriec-of 
passengers  is  not  liable  as  a  common  cgxrier  forjthe  baggage_of  a 
gratuitous  passenger."'  Where  a  carrier,  in  consideration  of  pe- 
so See  ante.  p.  40. 
3T  Hutch.  CaiT.  §  57. 

3  8  Powell  V.  Myers,  26  Wend.  591,  596.  And  see  Holllster  v.  Nowlen,  19 
Wend.  234;  Cole  v.  Goodwin,  Id.  251;  Bomar  v.  Maxwell,  9  Humph.  621; 
Hawkins  v.  Hoffman.  6  Hill,  586;    Brooke  v.  Pickwick,  4  Blng.  218;    McCJill  v. 

Rowand,  3  Pa.  St.  451.    But  see  :\Iiddleton  v.  Fowler,  1  Salk.  2S2;   Upshare  v. 

Aidel,  1  Comyn,  25. 
39  Flint  &  P.  M.  Ry.  C5o.  v.  Weir,  37  Mich.  111. 


310  CARRIERS    OF    GOODS.  [Ch.  7 

ceiving  grain  to  carry,  agrees  to  return  the  empty  sacks  without 
charge,  he  is  nevertheless  a  common  carrier  of  the  empty  sacks.*° 

Who  hate  been  Edd  Common  Carriers. 

There  is  no  essential  distinction  in  principle  between  carriers  by 
land  and  carriers  by  water.*^  The  following  have  been  held  to  be 
common  carriers:  Express  companies;*-  transportation  compa- 
nes;  *^  canal  companies;  **  stage  coaches  and  omnibuses,  as  to  bag- 
gage carried;*'   hackmen   and   cab  drivers;*^   railroad   companies. 

*o  Pierce  v.  Railway  Co..  23  Wis.  3S7.  See,  also.  Spears  v.  KaUroad  Co.,  67 
Barb.  513.  Where  a  carrier  undertakes  to  transport  and  seU  goods,  and  re- 
turn the  money,  the  return  of  the  money  is  not  gratuitous.  Harrington  v. 
McShane,  2  Watts,  443. 

*i  Nugent  T.  Smith,  1  C.  P.  Div.  423:  Hale  v.  Navigation  Co.,  15  Conn. 
539;  Trent  &  M.  Nav.  Co.  v.  Wood,  4  Doug.  2S1,  3  Esp.  127;  Rich  v.  Kneeland 
Cro.  Jac.  330.  Hob.  17;  Liverpool  &.  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.. 
129  U.  S.  397.  9  Sup.  Ct  469. 

42  United  States  Exp.  Co.  v.  Baekman.  2S  Ohio  St  144;  Buckland  v. 
Adams  Exp.  Co.,  97  Mass.  124;  Lowell  Wire  Fence  Co.  v.  Sargent  8  Al- 
len, 1S9;  Bank  of  Kentucky  v.  Adams  Exp.  Co..  93  U.  S.  174:  Sweet  v.  Bar- 
ney. 23  N.  T.  335;  American  Exp.  Co.  v.  Hockett,  30  Ind.  250;  Gulliver  v. 
Adams  Exp.  Co.,  38  111.  503;  Yemer  v.  Sweitzer,  32  Pa.  St  208;  Christenson 
V.  American  Exp.  Co.,  15  Minn.  270  (Gil.  2081;  Sherraan  v.  Wells,  28  Barb. 
4<j3;  Baldwin  v.  American  Exp.  Co.,  23  lU.  197;  Southern  Exp.  Co.  v.  Newby. 
36  Ga.  635;  Hayes  v.  Wells,  Fargo  &  Co..  23  CaL  185.  See  Roberts  v. 
Turner,  12  Johns.  232;  Hooper  v.  Wells.  Fargo  i-  Co..  27  Cal.  11. 

*3  Merchants'  Dispatch  Transp.  Co.  v.  Bloch.  86  Tenn.  392.  6  S.  W.  881. 
But  a  mere  forwarding  agent  is  not  a  common  carrier.  Roberts  v.  Turner, 
12  .Tohns.  232. 

♦♦Miller  v.  Navigation  Co.,  10  N.  Y  431;  Hyde  v.  Navigation  Co.,  5  Term 
R.  3.S9. 

♦  5  Story.  Bailm.  §§  496,  499;  Vemer  v  Sweitzer.  32  Pm.  St.  208.  Hackney 
coach.  Bonce  v.  Railway  Co.,  53  Iowa,  278.  5  N.  W  177.  Omnibus,  Parme- 
lee  V.  Lowitz.  74  111.  116.  Dibble  v.  Brown.  12  Ga.  217;  Parmelee  v.  Mc- 
Nulty,  19  111.  556.  Cabs,  drays,  etc.,  see  Story.  Baihn.  §  496;  Richards  v. 
Westcott.  2  Bosw.  (N.  Y.)  589;  Vemer  v.  Sweitzer.  32  Pa.  St  208;  Powers  v. 
Davenport.  7  Blackf.  (Ind.)  497;  McHenry  v.  Railroad  Co.,  4  Har.  (Del.)  448. 
In  Robertson  t.  Kennedy,  2  Dana  (Ky.)  431.  tht  court  said:  "Every  one 
who  pursues  the  business  of  transporting  goods  for  hire  for  the  public  gen- 
erally is  a  common  carrier.  »  *  *  Draymen,  cartmen,  and  poners,  who 
undertake  to  carry  goods  for  hire,  as  a  common  empJcvment,  from  one  part 


♦•  Lemon  v.  Chanslor,  G8  Mo.  340;    Bouce  v.  Railway  Co.,  53  Iowa,  278,  5 
y.  W.   177. 


§    66]  EPSENTIAL    CHARACTERISTICS.  311 

as  to  baggage*^  and  freight/®  but  not  as  to  passengers;"  hoy- 
men,  bargemen,  lightermen,  canalboatmen;  "^^  feiries;  "^^  rafts  or 
flalboats;  °^    steamboats    and    merchant    ships;'*    railroad    receiv- 

of  a  town  to  another,  come  within  the  definition.  So,  also,  does  the  driver 
of  a  slide  with  an  ox  team.  The  mode  ot  transporting  is  immaterial."  See, 
also,  Ingate  v.  Christie.  3  Car.  &  K.  Gl;  Sales  v.  Stage  Co.,  4  Iowa,  547; 
Hollister  v.  Nowlen,  19  Wend.  234;  Walker  v.  Skipwith,  Meigs  (Tenn.) 
502;  Frink  v.  Coe,  4  G.  Greene  (Iowa)  555;  Powell  v.  Mills,  30  Miss.  231.  But 
see  Brind  v.  Dale,  8  Car.  &  P.  207;  Moses  v.  Railroad,  24  N.  H.  71;  Charles 
V.  Lasher,  20  111.  App.  36. 

*^  Macrow  v.  Railway  Co.,  L.  R.  6  Q.  B.  G12;  Hannibal  R.  Co.  v.  Swift,  12 
Wall.   262. 

48  Norway  Plains  Co.  v.  Boston  &  M.  R.  Co.,  1  Gray,  263;  Thomas  v. 
Railroad  Corp.,  10  Mete.  (Mass.)  472;  Root  v.  Railroad  Co.,  45  N.  Y.  524;  Ful- 
ler V.  Railroad  Co.,  21  Conn.  557,  570;  Rogers  Locomotive  &  Machine  Works 
V.  Erie  Ry.  Co.,  20  N.  J.  Eq.  379;  Noyes  v.  Railroad  Co.,  27  Vt.  110;  Contra 
Costa  Coal  Mines  R.  Co.  v.  Moss,  23  Cal.  323.  Railway  companies  are.  per- 
haps, the  most  common  Instances  of  common  carriers,  and  it  would  be  use- 
less to  multiply  citations. 

*9  1  Smith,  Lead.  Cas.  §  234;  Aston  v.  Heaven,  2  Ksp.  533;  Christie  v.  Griggs, 
2  Camp.  79;  Sharp  v.  Grey,  9  Bing.  457,  4.i9;  Great  Western  Ry.  Co.  v.  Blake, 
7  Hurl.  &  N.  987;  Hutch.  Carr.  §  SO.  But  see  Bretherton  v.  Wood,  3  Brod. 
&  B.  54;  Carpue  v.  Railway  Co.,  5  Q.  B.  Div.  747  Carriers  of  passengers,  gen- 
erally, are  common  carriers  as  to  baggage  of  the  passenger,  but  not  as  to 
his  person.  Hollister  v.  Nowlen,  19  Wend.  2:54;  Christie  v.  Griggs,  2  Camp. 
79;  Boyce  v.  Anderson,  2  Pet.  150.    As  to  what  is  baggage,  see  post,  p.  381. 

61  Bowman  v.  Teall,  23  Wend.  306,  309;  Parsons  v.  Hardy,  14  Wend.  215; 
De  Mott  V.  Laraway.  Id.  225.  Compare  Fish  v.  Clark,  49  N.  Y.  122.  See, 
also,  Humphreys  v.  Reed,  6  Whart.  (Pa.)  435;  Fuller  v.  Bradley,  25  Pa. 
St.  120;  Hutch.  Carr.  §  58a;  Arnold  v.  Halenbake,  5  Wend.  33;  Hyde  t 
Navigation  Co.,  5  Term  R.  389;   Trent  Nav.  Co.  v.  Ward,  8  Bsp.  127. 

62  Wyckoff  V.  Ferry  Co.,  52  N.  Y.  32;  Le  Barroi-  v.  Ferry  Co.,  11  Allen,  312; 
Lewis  V.  Smith,  107  Mass.  334;  White  v.  Wmnisimmet  Co..  7  CuFh.  156; 
Fisher  v.  Clisbee,  12  111.  344;  Pomeroy  v.  Donaldson,  5  Mo.  36;  Whitraore  v. 
Bowman,  4  G.  Greene  (Iowa)  148;  Miller  v.  Pendleton,  8  Grr..v,  547;  Claypool 
V.  McAllister,  20  111.  504;  Sanders  v.  Young,  1  Head  (Tenn.)  219:  Wilson  v. 
Hamilton,  4  Ohio  St.  722;  Harvey  v.  Rose.  26  Ark.  3;  Powell  v.  Mills,  37 
Miss.  691;  Grifhth  v  Cave,  22  Cal.  535;  May  v.  Hanson.  5  Cal.  360:  Little- 
john  V.  Jones,  2  McMul.  (S.  C.)  365;  Hall  v.  Renfro.  3  Mete.  (Ky.)  51;  Bab- 
cock  V.  Herbert,  3  Ala.  392:    Self  v.  Duun,  42  Ga    528. 

B3  Steele  v.    McTyre,  31    Ala.   667. 

6*2  Kent,  Comm.  599;    Harrington  ?.  M'Shane.  2  Watts  (Pa.)  443;    Benett 


312  CARRIERS    OF    GOODS.  [Ch.   7 

ers  •■"'  and  trustees."'  A  company  operating  sleeping  cars  in  con- 
nection  with  railway  trains  is  not  a  common  carrier,  nor  an  iun- 
kc-e{>er,  as  to  the  goods  or  baggage  of  the  passenger.^"  But  such 
companies  are  liable  for  ordinary  negligence  in  protecting  pas- 
sengers fromlossbytheft.^*  TJieir  liability  rests  solely  upon  a 
failure  to  use  proper  care.^°  The  same  rule  holds  good  in  regard 
to  steamships. "^^  Where  one  hires  cars  from  a  railway  company, 
and  the  latter  agrees  to  furnish  the  motive  power  and  the  use  of  its 
tracks  for  transportation,  it  has  been  held  both  that  the  company 
Is/^  and  that  it  is  not,®^  a  common  carrier.     A  tugboat  is  not,  as 

V.  Steam-Boat  Co.,  6  C.  B.  775;  Crouch  v.  Railway  Co..  14  C.  B.  255,  284; 
Clark  V.  Barnwell.  12  How.  272;  The  Delaware,  14  Wall.  579;  Hastings 
V.  Pepper,  11  Pick.  (Mass.)  41;  Gajje  v.  Tinell.  9  Alleu,  299;  Elliott  v.  Ros- 
sell,  10  Johns.  1;  Williams  v.  Branson,  1  Murph.  (N.  C.)  417;  Crosby  v. 
Pitch.  12  Conn.  410;  Parker  v.  FJagg,  26  Me  181:  Swindler  v.  Hilliard.  2 
Rich.  Law  (S.  C.)  286;  McGregor  v.  Kilgore,  6  Ohio,  358;  Hollister  v.  Nowlen, 
19  Wend.  234;  Cole  v.  Goodwin,  Id.  251;  Jones  v.  Pitcher,  3  Stew.  &  P.  (Ala.) 
135.  A  ship  is  a  common  carrier,  though  it  does  not  ply  on  any  definite 
route,  or  between  fixed  termini,  where  it  is  let  lo  any  )ne  who  applies,  under 
a  special  agreement.  Liver  Alkali  Co.  v.  Johnson.  L.  R.  9  Exch.  338,  7  Exch. 
267. 

55  Nichols  V.  Smith,  115  Mass.  332;  Paige  v.  Smith,  99  Mass.  395;  Blumen- 
thal   V.   Brainerd,  38  Vt.   402. 

56  Rogers  V.  Wheeler,  2  Laus.  (N.  Y.)  486.  43  N.  Y.  598;  Faulkner  v.  Hart. 
44  N.  Y.  Super.  Ct.  471;    Sprague  v.  Smith,  29  Vt.  421. 

57  Pullman  Palace  Car  Co.  v.  Smith,  73  111.  360;  Pullman  Car  Co.  v.  Gard- 
ner, 3  Penny.  (Pa.)  78;  Blum  v.  Car  Co.,  1  Flip.  5U0,  Fed.  Cas.  No.  1,574;  Wood- 
ruflf  Sleeping  &  Parlor  Coach  Co,  v.  Diehl.  84  Ind.  474;  Pullman  Palace  Car 
Co.  v.  Lowe,  28  Neb.  239,  44  N.  W.  226;  Barrott  v.  Car  Co.,  51  Fed.  796;  Pull- 
man Palace  Car  Co.  v.  Freudenstein.  3  Colo.  App.  540,  34  Pac.  578.  See  arti- 
cles. 25  Am.  Law  Rev.  569.  and  20  Am.  Law  Rev.  159.  See  "Innkeepers." 
uate,  p.  262;  "Can-iers."  post,  p.  4D0. 

68  Lewis  v.  Car  Co.,  143  Mass.  267,  9  N.  E.  615;  Whitney  v.  Car.  Co., 
143  Mass.  243,  9  N.  E.  619;  Pullman  Palace  Car  Co.  v.  Pollock,  69  Tex. 
120,  5  S.  W.  814. 

58  Blum  V.  Car  Co.,  1  Flip.  500,  Fed.  Cas.  No.  1.574,  5  Myers,  B"ed.  Dec.  WO. 
60  Clark  V.  Burns,  118  Mass.  275.     Steamboat  owners  are  regarded  and  held 

to  the  responsibilities  of  common  carriers,  but  are  not  responsible  to  passen- 

•  1  Mallory  v.  Railroad  Co.,  39  Barb.  488;  Hannibal  R.  Co.  v.  Swift.  12  Wall. 
262. 

6  2  East  Tennessee  &  G.  R.  Co.  v.  Whittle.  27  Ga.  535;  Ohio  &  M.  R.  Co.  v, 
Dunbar,  20  111.  624;   Kimball  v.  Railioad  Co.,  26  Vt.  247. 


§    66]  ESSENTIAL    CHARACTERISTICS.  318 

to  goods  on  the  vessel  in  tow,  nor  as  to  the  vessel  itself."  Neither 
is  a  railway  company  which,  under  a  special  contract,  hauls  a  cir- 
cus train  owned,  loaded,  and  controlled  by  proprietors  of  the  cir- 
cus.'*    Postmasters,  mail  contractors,  and  carriers,®"  log  driving 

gers  for  the  loss  of  their  wearing  apparel  which  they  carry  about  their  person, 
and  not  delivered  to  the  officers  of  the  boat  as  baggage  for  safe-keeping. 
Steamboat  Crystal  Palace  v.  Vanderpool,  IG  B.  Mon.  (Ky.)  302;  Abbott  v. 
Bradstreet,  5.5  Me.  530. 

63  The  Neaffie,  1  Abb.  (U.  S.)  465,  Fed.  Cas.  No.  10,003,  5  Myers,  Fed.  Dec. 
19;  Brown  v.  Clegg,  G3  Pa.  St.  51;  Hays  v.  Millar,  77  Pa.  St.  238;  Leonard  v. 
Hendrickson,  18  Pa.  St.  40;  Hays  v.  Paul,  51  Pa.  St.  134;  WeUs  v.  Naviga- 
tion Co.,  2  N.  Y.  204,  8  N.  Y.  375;  aaton  v.  Rumney,  13  Wend.  387;  Alexander 
V.  Greene,  3  Hill,  9;  Arctic  Fire  Ins.  Co.  v.  Austin,  54  Barb.  559;  Merrick  v. 
Brainard,  38  Barb.  574;  Transportation  Line  v.  Hope,  95  U.  S.  297;  The  Webb. 
14  Wall.  406;  Varble  v.  Bigley,  14  Bush  (Ky.)  698;  The  New  Philadelphia,  1 
Black,  62;  The  Oconto,  5  Biss.  460,  Fed.  Cas.  No.  10,421;  Abbey  v.  The  Rob- 
ert L.  Stevens,  22  How.  Prac.  78;  Wooden  v.  Austin,  51  Barb.  9;  The  Mar- 
garet, 94  D.  S.  494;  Symonds  v.  Pain,  6  Hurl.  &  N.  709;  The  Julia,  14  Moore 
P.  C.  210.  But  see,  contra,  Bussey  v.  Transportation  Co.,  24  La.  Ann.  165; 
Clapp  V.  Stanton,  20  La.  Ann.  495;  Smith  v.  Pierce,  1  La.  349;  White  v.  The 
Mary  Ann,  6  Cal.  462;  Walston  v.  Myers,  5  Jones  (N.  C.)  174.  See,  also,  Ash- 
more  V.  Transportation  Co.,  28  N.  J.  Law,  180.  In  Bussey  v.  Transportation 
Co.,  supra,  it  was  suggested  that  a  steam  towboat  might  be  employed  in  two 
very  different  ways,  and  that  possibly  this  fact  would  explain  the  conflict  of 
opinion.  In  the  first  place,  it  may  be  employed  as  a  mere  means  of  locomotion, 
under  the  entire  control  of  the  towed  vessel,  or  the  owner  of  the  towed  vessel 
and  goods  therein  may  remain  in  possession  and  control  of  the  property  thus 
ti-ansported,  to  the  exclusion  of  the  bailee,  or  the  towing  may  be  casual, 
merely,  and  not  a  regular  business  between  fixed  termini;  and  it  might  well 
be  said  that,  under  such  circumstances,  a  towboat  is  not  the  common  carrier. 
But  a  second  and  quite  different  method  of  employing  a  towboat  is  where 
she  plies  regularly  between  the  fixed  termini,  towing  for  hire,  and  for  all  per- 
sons, barges  laden  with  goods,  and  taking  into  her  full  possession  and  control, 
and  out  of  the  control  of  the  bailor,  the  property  thus  transported.  Such  a 
case  seems  to  satisfy  every  requirement  in  the  definition  of  a  common  carrier. 

6*  Coup  V.  Railway  Co.,  56  Mich.  Ill,  22  N.  W.  215;  Chicago,  M.  &  .St.  P. 
R.  Co.  V.  Wallace,  14  C.  C.  A.  257,  66  Fed.  506.  Generally,  as  to  liabilities  of 
company  hauling  cars  of  another  company,  see  Peoria  &  P.  Union  Ry.  Co.  v. 
United  States  RoUing-Stock  Co.,  136  111.  643,  27  N.  E.  59. 

6  6  Lane  v.  Cotton,  1  Ld.  Raym.  646;  Dunlop  v.  Munroe,  7  Cranch,  242;  Wig- 
gins V.  Hathaway,  6  Barb.  632;  Schroyer  v.  Lynch,  8  Watts  (Pa,)  453;  Cen- 
tral Railroad  &  Banking  Co.  v.  Lampley,  76  Ala.  357. 


314  CARRIEBS    OF   GOODS.  [Ch.   7 

and  booming  companies,"  are  not  common  carriers.  '^Bridge,'' 
canal, ®^  and  turnpike  ^^  companies  organized  merely  for  the  purpose 
of  furnishing  a  thoroughfare  over  which  others  may  transport 
goods,  but  not  engaged  in  transportation  themselves,  are  not  com- 
mon carriers."  ''^    Carriers  of  live  stock  are  common  carriers.''^ 


SAME— WHEN  LIABILITY  ATTACHES. 

67.  Liability  attaches  -when  goods  are  delivered  to  and  ac- 

cepted by  the  carrier  for  immediate  transportation 

(p.  314). 

68.  Acceptance  may  be  presumed  -when   goods  are  left  in 

the  usual  place,  in  accordance  -with  the  contract  or 
custom  of  the  carrier  to  so  receive  them  (p.  318). 

Delivery  for  Immediate  Transportation. 

The  resjwnsibility  of  a  common  carrier  for  goods  intrusted  to  him 
commences  when  there  has  been  a  complete  delivery  to  him  for  the 
purpose  of  immediate  transportation. '^^     If,  without  putting  them  in 

6  6  Mann  v.  Booming  Co.,  46  Mich.  38,  8  N.  W.  550. 

67  Kentucky  &  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  5G7,  GIG; 
Grigsby  v.  Chappell,  5  Rich.  Law  (S.  C.)  443. 

6  8  Exchange  Fire  Ins.  Co.  v.  Delaware  &  H.  Canal  Co.,  10  Bosw.  (N.  Y.)  180; 
Pennsylvania  Canal  Co.  v.  Burd,  90  Pa.  St.  281,  Watts  v.  Canal  Co.,  64  Ga.  88. 

6  0  Lake  Superior  &  M.  R.  Co,  v.  U.  S.,  93  U.  S.  442,  444. 

7  0  Hutch.  Can-.  §  81e.  As  to  whether  an  irrigating  company  is  a  common 
carrier  of  water,  see  Wheeler  v.  Irrigation  Co.,  10  Colo.  582,  17  Pac.  487. 

71  See  post,  p.  371. 

72  Michigan  Southern  &  N.  I.  R.  Co.  v.  Shurtz,  7  Mich.  515;  Grand  Tower 
Manuf'g  &  Ti-ansp.  Co.  v.  Ullman,  80  111.  244;  Clarke  v.  Needles,  25  Pa.  St  338; 
Merriam  v.  Railroad  Co.,  20  Conn.  354;  Blossom  v.  Gritlin,  13  N.  Y.  5G9;  Ever- 
shed  V.  Railway  Co.,  47  Law  J.  Q.  B.  284,  3  Q.  B.  Div.  134;  St.  Louis,  I.  M. 
&  S.  Ry.  Co.  V.  Murphy,  60  Ark.  333,  30  S.  W.  419;  London  &  L.  Fire  Ins.  Co. 
V.  Rome,  W.  &  O.  R.  Co.,  144  N.  Y.  200,  39  N.  E.  79;  Id.,  23  N.  Y.  Supp.  231, 
G8  Hun,  598;  Stewart  v,  Gracy,  93  Tenn.  314,  27  S.  W.  G(34;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Trawick.  80  Tex.  270,  15  S.  W.  568,  and  18  S.  W.  W8;  McCullough 
V.  Railway  Co.,  34  Mo.  App.  23;  Barron  v.  Eldredge,  100  Mass.  455;  llliuois 
Cent.  R.  Co.  v.  Smyser,  38  111.  354.  "To  complete  the  delivery  of  goods  to  the 
carrier,  it  is  essential  that  the  property  be  placed  in  a  position  to  be  cared 
for,  and  under  the  control  of  the  carrier  or  his  agent,  with  his  knowledge  and 


§§    67-68]  WHEN    LIABILITY    ATTACHES.  315 

transit,  the  carrier,  for  his  own  temporary  convenience,  places  them 
in  store,  still  the  liability  of  a  carrier  attaches.'"  The  delivery  must 
be  for  immediate  ti-ansportation,  and,  of  course,  it  cannot  be  com- 
plete if  anytliing  remains  to  be  done  by  the  shipper  before  the  goods 
can  be  sent  on  their  way.^*  If  by  the  usage  and  course  of  business, 
and  especially  if  by  express  request,  the  shipment  is  delayed  for^tHJ'- 
ther  .orders  as  to  their  destination,  or  for  the  convenience  of  the 
owner,  then,  during  the  time  of  such  delay,  the  liability  is  that  of  a 
warehouseman.^ ^  The  more  stringent  liability  of  a  common  carrier 
only  attaches  when  the  Antj  of  immediate  transportation  arises.  It 
then  shifts  from  that  of  a  warehouseman,  although  the  goods  remain 
unmoved  in  the  storehouse.  Whether  the  responsibility  be  in  one 
capacity  or  the  other  is  seldom  a  matter  of  express  agreement  be- 

consent."  Grosvenor  v.  Railroad  Co.,  39  N.  Y.  34.  See,  also,  Bergbeim  v. 
Railway  Co.,  3  C.  P.  Div.  221.  "Wben  the  owner  of  the  goods  has  done  all 
in  his  power,  and  all  that  he  is  required  to  do,  by  his  understanding  with  the 
carrier,  or  the  usage  of  the  business,  to  further  the  shipment,  and  it  becomes, 
then,  the  duty  of  the  carrier  to  do  whatever  else  is  necessary  to  put  them  in 
transitu,  the  delivery  and  acceptance  will  be  considered  as  complete  from  the 
time  the  carrier  is  informed  that  they  are  ready  for  him."  Hutch.  Carr.  §  99. 
A  carrier  is  liable  for  the  loss  of  baggage  of  an  intending  passenger,  delivered 
to  it,  before  purchasing  a  ticket,  on  the  night  before  the  train  was  to  leave. 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Foster.  104  lud.  293,  4  N.  E.  20.  As  to  what  is 
a  reasonable  time  before  starting  of  a  train,  in  which  to  deliver  baggage,  see 
Hickox  V.  Railroad  Co.,  31  Conn.  281;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Foster, 
104  Ind.  293,  4  N.  E.  20.  A  carrier  is  liable  as  a  common  carrier,— i.  e.  in- 
surer,— even  before  time  for  beginning  of  the  transit.  3  Wood,  Ry.  l^w,  § 
404. 

73  Rogers  v.  Wheeler,  52  N.  Y.  2G2;  Fitchburg  &  W.  R.  Co.  v.  Hanua,  U 
Gray,  539;  Boehm  v.  Combe,  2  .Maule  &  S.  172.  174;  Hutch.  Carr.  §  89;  Wood. 
Browne,  Carr.  §  84. 

7  4  Michigan  Southern  &  N.  I.  R.  Co.  v.  Shurtz,  7  Mich.  515;  Moses  v.  Riiil- 
road,  4  Fost.  (N.  H.)  71;  Rogers  v.  Wheeler,  52  N.  Y.  2G2;  O'Neill  v.  Rail- 
road Co.,  60  N.  Y.  138;  Wade  v.  AVheeler,  8  Lans.  (N.  Y.)  201;  Barron  v.  El- 
dredge,  100  Mass.  455;  Fitchburg  &  W.  R.  Co.  v,  Hanna,  G  Gray,  539;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Knight,  122  U.  S.  79.  7  Sup.  Ct.  1132. 

7  5  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Montgomery.  39  111.  335;  Barron  v.  El- 
dredge,  100  Mass.  455;  Mt.  Vernon  Co.  v.  Railroad  Co.,  92  Ala.  29G,  8  South. 
687;  O'Neill  v.  Railroad  Co.,  60  N.  Y.  188;  Schmidt  v.  Railway  Co.,  90  Wis. 
504,  63  N.  W.  1057. 


316  CARRIERS    OF    GOODS.  [Ch.   7 

tween  the  parties.     It  arises  out  of  the  relation  which  the  parties 
sustain,  and  the  duties  which  the  law  imposes.'* 

Same — Agents. 

The  delivery  to  and  acceptance  by  the  carrier  may,  of  course,  be 
made  by  duly-authorized  agents."  The  ordinary  rules  of  agency  ap- 
ply. An  authority  to  deliver  goods  to  a  common  carrier  for  trans- 
portation includes  all  the  necessary  and  usual  means  of  carrying  it 
into  effect  It  can  only  be  executed  by  obtaining  the  consent  of  the 
carrier  to  receive  them,  and  the  agent  is  therefore  authorized  to  stipu- 
late for  the  terms  of  transportation.'^*  Ordinarily  a  shipper  is  justi- 
fied in  assuming  that  a  person  in  charge  of  the  carrier's  usual  place 
for  receiving  goods  has  authority  to  accept  such  goods,  and  contract 
for  the  carrier.' '     So  if,  before  sending  goods  by  a  carrier,  the  sender 

7  8  Story,  Bailm.  §  535;  Buckland  v.  Express  Co.,  2  Redf.  Am.  Ry.  Gas.  46; 
Judson  V.  Western  R.  Corp.,  4  Allen,  520;   Barron  v.  Eldredge,  100  Mass.  455. 

7T  See  ante,  p.  18. 

T8  See,  also.  Nelson  v.  Railroad  Co.,  4S  N.  Y.  498;  Jennings  v.  Railway  Co., 
52  Hun,  227,  5  N.  Y.  Supp.  140;  Squire  v.  Railroad  Co.,  98  Mass.  239;  Yorli 
Co.  V.  Central  R.  Co.,  3  Wall,  113;  London  &  N.  W.  R.  Co.  v.  Baitlett,  7  HurL 
&  N.  400.  An  agent,  employed  to  ship  goods  to  the  owner,  may  mate  such 
contract  with  the  common  carrier  as,  in  the  honest  exercise  of  his  discretion, 
he  sees  fit.     Shelton  v.  Transportation  Co.,  59  N.  Y.  258. 

7  9  Ci-onkite  v.  Wells,  32  N.  Y.  247,  253;  Rogers  v.  Railroad  Co.,  2  Lans.  (N. 
Y.)  269;  Ouimit  v.  Henshaw,  35  Vt.  605;  Whitbeck  v.  Schuyler,  44  Barb.  469; 
Pacific  Exp.  Co.  v.  Black  (Tex.  Civ,  App.)  27  S.  W.  830.  But  not  where  the 
apparent  scope  of  his  employment  shows  it  to  be  clearly  beyond  his  authority. 
Ford  v.  Mitchell,  21  lud.  54;  Trowbridge  v.  Chapin,  23  Conn.  595.  Although 
an  agent  has  no  authority  to  issue  a  biU  of  lading  without  receiving  the  goods, 
yet,  as  against  a  person  advancing  money  in  good  faith  upon  such  receipt, 
the  carrier  is  estopped  to  deny  that  the  goods  were  received.  Brooke  v.  Rail- 
road Co.,  108  Pa.  St.  529,  1  Atl.  20G;  Bank  of  Batavia  v.  New  York,  L,  E.  & 
W,  R.  Co.,  106  N.  Y.  195,  12  N.  E.  433.  Contra,  National  Bank  of  Commerce 
V.  Chicago,  B.  &  N.  R.  Co.,  44  Minn.  224,  46  N.  W.  342;  Baltimore  &  O,  R.  Co, 
V.  WiUiens,  44  Md,  11.  And  compare  Robinson  v.  Railroad  Co.,  16  Fed.  57. 
"It  is  the  duty  of  a  railway  company  to  have  servants  capable  of  giving  di- 
rections, and  of  dealing  with  everything  that  the  exigency  of  the  traffic  may 
require  (TafC  Vale  Rail  Co.  v.  Giles,  23  Law  J.  Q.  B.  43,  2  Bl.  &  Bl.  S23);  and 
their  servants,  acting  in  the  ordinary  scope  of  their  employment,  would  have 
authority  to  receive  goods,  and  enter  into  contracts  as  to  the  forwarding  of 
them  (Long  v.  Home,  1  Car.  &  P.  610;  Winkfield  v.  Packington,  2  Car.  &  P, 
599).     As  a  rule  the  oflScials  at  a  railway  station  (Pickford  v.  Railroad  Co.,  12 


§§  67-G8]  WHEN  liability  attaches.  317 

applies  at  his  wharf  to  know  at  what  price  they  will  be  carried,  and  is 
told  by  a  clerk  who  is  transacting  the  business  there,  and  on  the  faith 
of  this  sends  the  goods,  the  carrier  cannot  charge  more,  although  he 
had  previously  ordered  his  clerks  to  charge  a  higher  rate  than  the 
one  named.'"'  "Persons  dealing  with  railroad  corporations,  and  par- 
ties engaged  in  the  transportation  of  freight,  have  a  right  to  consider 
that  those  usually  employed  in  the  business  of  receiving  and  forwa^id- 
ing  it  have  ample  authority  to  deal  with  them.  It  is  enough  to  estab- 
lish a  delivery,  in  the  first  instance,  to  prove  that  a  person  thus  acting 
received  and  accepted  the  property  for  the  purpose  of  transportation ; 
and,  even  although  it  subsequently  appears  that  another  employed  was 
actually  the  agent  having  charge  of  this  department  of  business,  yet 
the  company  who  sanction  the  performance  of  this  duty  by  other  per- 
sons in  their  employment,  and  thus  hold  out  to  the  world  that  they 

Mees.  &  W.  766;  Wilson  v.  Railroad  Co.,  17  Law  T.  223);  the  company's 
draymen,  where  such  are  employed  to  collect,  or  usually  collect,  goods  on  the 
road,  or  at  the  houses  of  the  consignors  (Davey  v.  Mason,  Car.  &  M.  4."^;  Bax- 
endale  v.  Hart,  21  Law  J.  Exch.  123,  6  Exch.  769);  the  servants  of  anothei 
carrier,  engaged  by  the  company,  under  a  subcontract,  to  deliver  and  colkvl 
goods  (Machin  v.  Railroad  Co.,  17  Law  J.  Exch.  271,  2  Exch.  415);  a  person 
accustomed  to  book  for  the  company,  although  the  servant  of,  and  deriving 
his  authority  from,  another  and  separate  carrier,  who  undertakes  the  transit 
during  a  stage  of  the  journey  anterior  to  the  goods  actually  coming  into  the 
company's  possession  (McCourt  v.  Railroad  Co..  3  Ir.  C.  L.  107,  402),— would 
be  considered  persons  to  whom  a  good  delivery  might  be  made,  and  who 
would  be  competent  to  enter  into  a  contract,  ordinary  or  special,  for  the  car- 
riage of  the  goods.  But  a  servant  could  not  bind  the  company  beyond  the  au- 
thority presumed  from  his  employment  (Great  Western  R.  Co.  v.  Willis,  34 
Law  J.  C.  P.  195,  18  C.  B.  [N.  S.]  74S;  Horn  v.  Railroad  Co.,  42  Law  J.  C.  P. 
59,  L.  R.  8  C.  P.  131;  per  Blackburn,  J.);  nor  even  to  the  extent  of  the  author- 
ity presumable  from  his  employment,  if  the  customer  have  notice  of  a  more 
limited  authority  (Walker  v.  Railroad  Co.,  23  Law  J.  Q.  B.  73,  2  El.  &  Bl.  750;: 
nor  when  acting  in  coutmvention  of  his  duty,  as  where  an  agent,  whose  duly 
was  to  give  receipts  for  goods  actually  received,  fraudulently  gave  a  receipt 
for  goods  which  had  never  been  received  ((Joleman  v.  Riches,  24  Law  J.  C.  P. 
125,  16  C.  B.  104);  nor  when  acting  in  defiance  of  the  known  course  of  busi- 
ness of  the  company"  (Redm.  Ry.  Carr.  p.  42). 

«o  WInkfleld  v.  Packlngton,  2  Car.  &,  P.  509.  Depot  agents  have  the 
power  as  incident  to  the  office,  to  make  reasonable  regulations  as  to  the  eon- 
duct  of  business  at  their  depots,  unless  restricted,  controlled,  or  limited  in 
that  respect    Smith  v.  Chamberlain,  3S  S.  C.  529,  17  S.  E.  37L 


318  CARRIERS    OF    GOODS.  [Ch,   7 

are  authorized  agents,  are  not  at  liberty  to  relieve  themselves  from 
responsibility  by  repudiating  their  acts."  •* 

Same — Place  of  Delivery. 

Delivery  may  be  made  to  a  carrier  wherever  he  or  his  authorized 
agent  will  accept  the  goods.  ^"^  But  if  the  delivery  is  not  made  at  the 
place  appointed  by  the  carrier,  or  at  his  office  or  place  of  business,  it 
must  be  accepted  by  the  carrier  himself,  or  his  duly-authorized  agent, 
or  the  carrier  will  not  be  bound. *^  The  presumption  that  one  in 
charge  of  the  usual  place  of  receiving  goods  has  authority  to  do  so 
does  not  apply  where  the  delivery  is  made  elsewhere.*' 

AccepUince  by  Carrier. 

It  has  been  seen  that  a  bailment  cannot  arise  in  the  absence  of  the 
bailee's  consent*®  Liability  as  a  common  carrier,  therefore,  does  not 
attach  until  the  goods  have  been  accepted  by  the  carrier.®*     But  the 

81  Grosvenor  v.  Railroad  Co.,  39  N.  Y.  34.  See,  also,  Bank  of  Batavia  v. 
New  York,  L.  E.  «&  W.  R.  Co.,  106  N.  Y.  195,  12  N.  E.  433;  Goodrich  v.  Thomp- 
son, 4  Rob.  (N.  Y.)  75,  44  N.  Y.  324;  Isaacson  v.  Railroad  Co.,  94  N.  Y.  278; 
Goddard  v.  Mallory,  52  Barb.  87;  Reynolds  v.  Toppan,  15  Mass.  370;  Bur- 
roughs V.  Railroad  Co.,  100  Mass.  9G;  Haggerty  v.  Railroad  Co.,  59  Mich.  3GG, 
26  N.  W.  639;  Ford  v.  Mitchell,  21  Ind.  54;  Baltimore  &  P.  Steamboat  Co.  v. 
Brown,  54  Pa.  St.  77;  Lackawanna  &  B.  R.  Co.  v.  Chenewith,  52  Pa.  St.  382; 
Strohn  v.  Railroad  Co..  23  Wis.  12G;  Grover  &  B.  S.  M.  Co.  v.  Missouri  Pac. 
R.  Co.,  70  Mo.  G72;  Baker  v.  Railroad  Co.,  91  Mo.  152,  3  S.  W.  4SG;  Harrison 
V.  Railway  Co.,  74  Mo.  364;  Turner  v.  Railway  Co.,  20  Mo.  App.  G32;  Cloud  v. 
Railway  Co.,  14  Mo.  App.  136;  Easton  v.  Dudley,  78  Tex.  236,  14  S.  W.  583. 
A  shipper's  knowledge  of  directions  to  the  carrier's  agent  not  to  receive  cer- 
tain articles  for  transportation  will  not  relieve  the  carrier  from  liability  if 
their  transportation  is  actually  undertaken.  Bennett  v.  Express  Co.,  S3  Me. 
236,  22  AU.  159. 

85  Phillips  V.  Earle,  8  Pick.  (Mass.)  182. 

8  6  Hutch.  Carr.  §  87;  Cronkite  v.  Wells,  32  N.  Y.  247;  Southern  Exp.  Co.  v. 
Newby,  3G  Ga.  G35.  Cf.  Whitbeck  v.  Schuyler,  44  Barb.  469;  Missouri  Coal 
&  Oil  Co.  V.  Hannibal  &  St.  J.  R.  Co.,  35  Mo.  84. 

8  7  Blanchard  v.  Isaacs,  3  Barb.  388. 

8  8  See  ante,  p.  13. 

8  9  Missouri  Pac.  Ry.  Co.  v.  McFadden,  1.54  U.  S.  155,  14  Sup.  Ct.  990.  "There 
must  be  either  an  actual  or  constructive  acceptance  by  the  carrier,  or  the  con- 
tract of  bailment  will  not  arise.  The  essential  element  of  such  a  contract  is 
that  the  bailee  is  to  be  trusted  with  the  goods,  and  if  he  is  not  made  aware 
of  the  intention  of  the  party  to  trust  the  goods  to  his  keeping,  or  if  the  party. 
Instead  of  trusting  the  goods  to  him,  still  retains  the  care  of  them,  the  bail- 


§§    67-68]  WHEN    LIABILITY    ATTACHES.  319 

acceptance  may  be  either  actual  or  constructive.**  Thus,  It  has  been 
held  that  depositing  goods  on  a  dock  witliout  notice  to  tlie  can-ier 
is  insufficient.^^  In  such  cases  there  is  no  bailment  and  no  liability, 
for  there  has  been  no  acceptance. 

Same — Contract,  Custom  and  Urnge. 

The  carrier,  for  his  own  protection,  may  make  reasonable  regula- 
tions as  to  place  and  manner  of  delivery.  The  parties  may  tbem- 
selves  agree  upon  a  mode  and  manner  of  delivery,  and  their  agreement 
will  govern.  So,  if  they  agree  that  goods  for  transportation  may  be 
deposited  at  any  particular  place  without  notice  to  the  cai-ner,  a  de- 
posit in  that  place  will  constitute  a  suilicient  delivery."^  The  ac- 
ceptance by  the  carrier  is  presumed,  if,  indeed,  it  cannot  be  said  to 
have  been  made  in  advance.  So,  also,  an  established  custom  and 
usage  in  regard  to  receiving  goods  for  transportation  will  bind  thc^ 
parties.  Where  goods  are  left  in  the  usual  place,  in  accordance  witli 
the  custom  of  the  carrier  to  receive  them  there,  acceptance  is  pre- 
sumed."^     Thus,  in  Wright  v.  Caldwell  ***  the  court,  per  Whipple,  J., 

ment  to  the  carrier  evidently  does  not  arise,  or  arises  only  in  a  modified  form. 
Thus,  where  a  wharfinger  delivered  goods,  which  were  sent  to  a  wharf,  to  go 
on  board  a  vessel,  to  one  of  the  crew,  and  did  not  deliver  them  to  the  captain 
of  the  vessel,  or  to  some  other  person  that  he  might  reasonably  presume  to 
be  in  authority,  it  was  held  that  he  had  not  discharged  his  duty,  and  he.  and 
not  the  shipper  [the  carrier],  was  liable  for  the  loss  which  occurred  owing  to 
his  negligence."  Wood,  Browne,  Carr.  §  90.  And  see  Leigb  v.  Smith,  1  Car. 
&  P.  G38. 

9  0  MeiTiam  v.  Railroad  Co.,  20  Conn.  354;  Converse  v.  Transportation  Co., 
33  Conn.  16G;  Ford  v.  Mitchell,  21  lud.  54;  Green  v.  Railroad  Co.,  38  Iowa, 
100,  41  Iowa,  410;  Wright  v.  Caldwell,  3  Mich.  51;  Packard  v.  Getman.  G 
Cow.  (N.  Y.)  757;  Freeman  v.  Kowton,  3  E.  D.  Smith  (N.  Y.)  24G;  Illinois 
Cent.  R.  Co.  v.  Smyser,  38  111.  354;  O'Bannon  v.  Southern  Exp.  Co.,  51  Ala. 
4S1;  Yoekum  v.  Dryden  (Tex.  Civ.  App.)  2G  S.  W.  312;  EvausviUe  &  T.  U. 
R.  Co.  V.  Keith,  8  Ind.  App.  57,  35  N.  B.  290. 

01  Packard  v.  Getman,  6  Cow.  (N.  Y.)  757;  Merriam  v.  Railroad  Co.,  20 
Conn.  354.  Or  merely  leaving  them  on  his  premises.  Grosveuor  v.  Railroad 
Co.,  39  N.  Y.  34;    Buckman  v.  Levi,  3  Camp.  414. 

»2  Hutch.  Carr.  §  90. 

83  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Foster,  104  Ind.  293,  4  N.  E.  22;  Wright 
V.  Caldwell,  3  Mich.  51;  Converse  v.  Tmnsportation  Co.,  33  Conn.  IGG; 
Meniam  v.  Railroad  Co.,  20  Conn.  354;  Green  \.  Railroad  Co..  38  Iowa,  100, 
41  Iowa,  410.    But  see  Packard  v.  Getman,  6  Cow.  (N.  Y.)  757. 

9*  3  Mich.  51, 


320  CARRIERS    OF    GOODS.  [Ch.  7 

say:  'It  is  well  settled  by  a  series  of  adjudications  of  high  authority 
that  if  a  uniform  custom  is  established  and  recognized  by  the  carrier, 
and  is  known  to  the  public,  that  property  intended  for  carnage  may 
be  deposited  in  a  particular  place,  without  express  notice  to  him, 
that  a  deposit  of  property  for  that  purpose,  in  accordance  with  the 
custom,  is  constructive  notice,  and  would  render  any  other  form  of 
delivery  unnecessary.  The  rule  is  founded  in  reason,  as  the  usage,  if 
habitual,  is  a  declaration  by  the  carrier  to  the  public  that  a  delivery 
of  property  in  accordance  with  the  usage  ^\ill  be  deemed  an  accept- 
ance of  it  by  him  for  the  purpose  of  transportation.  To  allow  a 
carrier,  when  property  is  thus  delivered,  to  set  up  by  way  of  defense 
the  general  rule  which  requires  express  notice,  would  operate  as  a 
fraud  upon  the  public,  and  lead  to  manifest  injustice."  So  a  deposit 
of  cotton  in  the  street  adjacent  to  a  railroad  platform,  in  accordance 
with  a  custom  to  deposit  it  there  for  carriage,  is  sufficient.® ®  So, 
where  goods  were  delivered,  in  the  usual  manner,  for  transportation 
by  a  common  carrier,  on  his  private  dock,  which  was  in  his  exclusive 
use  for  the  purpose  of  receiving  property  to  be  transported  by  him, 
it  was  held  that  such  delivery  was  a  good  delivery  to  the  carrier,  to 
render  him  liable  for  the  loss  of  the  goods,  although  neither  he  nor  his 
agent  was  otherwise  notified  of  such  delivery.®^  The  custobi  or  usage 
must  be  strictly  followed,  or  the  carrier  will  not  be  bound. 

ts  Montgomery  &  E.  Ry.  Co.  v.  Kolb,  73  Ala.  396. 

»«  Merriam  v.  Railroad  Co.,  20  Conn.  354.     See,  also,   Converse  r.  Trans- 
portation Co.,  33  Conn.  166. 


§^   6*h-71]  DUTY    TO    CARRY    FOR    ALL.  82l 

SAME  -RIGHTS  AND  LIABILITIES. 

69.  The  rights  and  liabilities  of  common  carriers  may,  for 

convenience,  be  treated  under  the  following  heads, 
viz.: 

(a)  The  obligation  of  carrying  for  all  (p.  321). 

(b)  The  duty  of  furnishing  equal  facilities  to  all  (p.  327). 

(c)  The  right  to  compensation  (p.  331). 

(d)  Liability  for  loss  or  damage — As  insurers  (p.  3")1). 

(e)  Liability  for  loss  or  damage — As  ordinary  bailees  (p. 

401). 

(f )  Liability  for  delay  (p.  408). 

(g)  Special  property  of  carriers — Right  of  action  (p.  412). 
(h)  Special  contract  (p.  413). 

SAME— DUTY  TO  CARRY  FOR  ALL. 

70.  It  is  the  duty  of  a  common  carrier  to  accept  and  trans- 

port all  goods  offered,  subject  to  the  following  lim- 
itations: 

(a)  The  extent  of  his  profession  (p.  321). 

(b)  The  extent  of  his  facilities  (p.  324). 

(c)  The  condition  of  the  goods  (p.  325). 

(d)  Payment  of  charges  in  advance  (p.  326). 

(e)  The  shipper's  authority  to  deliver  (p.  326). 

71.  Common    carriers   are  not  obliged  to   accept  goods  of 

a  kind   they  do   not  profess  to   carry,  nor  to  carry 
by  other  than  the  customary  means  and  route. 

Within  certain  limits,  it  is  the  duty  of  a  common  carrier  to  carry 
all  goods  offered.  This  duty  is  their  distinguishing  characteristic, 
and  for  breach  of  it  a  carrier  is  liable  in  damages  to  the  person  whose 
goods  are  refused.®''     Its  performance  may  be  compelled  by  injunction 

■''  Ayres  v.  Railroad  Co.,  71  Wis.  372,  37  N.  W.  432;  Riley  t.  Horue,  6 
Ring.  217,  220.    See  ante,  p.  308. 

LAW  BAILM.— 21 


322  CARRIERS    OF    GOODS.  [Ch.  7 

or  mandamus.®'     If  it  does  not  exist,  the  carrier  is  not  a  common 
carrier,  though  he  may  carry  for  hire.®® 

"A  common  carrier  is  a  public  carrier.  He  engages  in  a  public  em- 
ployment, takes  upon  himself  a  public  duty,  and  exercises  a  sort  of 
public  office.^""  He  is  under  a  legal  obligation.  Others  have  a  cor- 
responding legal  right.  His  duty  being  public,  the  correlative  right 
is  public.  The  public  right  is  a  common  right,  and  a  common  right 
signifies  a  reasonably  equal  right."  ^°* 

Public  Profession — Nature  of  Goods  Carried. 

The  duty  of  a  common  carrier  to  carrj'  for  all  who  offer  arises  from 
the  public  profession  he  has  made,  and  is  limited  to  it.  A  person 
may  profess  to  carry  a  particular  description  of  goods  only,  as,  for 
instance,  cattle  or  dry  goods,  in  which  case  he  could  not  be  compelled 
to  carry  any  other  kind  of  goods;  or  he  may  limit  his  obligation  to 
carrying  from  one  place  to  another,  as  from  Manchester  to  London, 
;ind  then  he  would  not  be  compelled  to  carry  to  or  from  intermediate 
places.^°^  But,  to  the  extent  of  their  public  profession,  common  car- 
riers must  carry  fot  all  who  offer.^"^ 

9  8  Chicago  &  N.  Ry.  Co.  v.  People,  56  111.  365;  State  v.  Delaware.  L.  &  W. 
R.  Co.,  48  N.  J.  Law,  55,  2  Atl.  803;  Sandford  v.  Railroad  Co.,  24  Pa.  St. 
378;  People  v.  New  York  Cent.  &  H.  R  R.  Co.,  28  Hun.  543;  Menacho  v. 
Ward,  27  Fed.  .529;  Chicago,  B.  &  Q.  Ry.  Co  v.  Burlington,  C.  R.  &  N.  Ry. 
Co.,  34  Fed.  481.  Where  an  action  for  damages  is  an  adequate  remedy, 
mandamus  will  not  lie.  People  v.  New  York,  L.  E.  &  W.  R.  Co.,  22  Hun,  533; 
People  V.  Babcock,  16  Hun,  313.  A  common  carrier  may  be  indicted,  at 
common  law,   for  refusal   to  caiTy. 

89  Hutch.  Carr.  §  111. 

100  Sandford  v.  Railroad  Co.,  24  Pa.  St.  378;  New  Jersey  Steam  Nav. 
Co.  V.  Merchants'  Bank  of  Boston,  6  How.  344,  382;  Shelden  v.  Robinson, 
7  N.  H.  157,  103,  164;  Gray  v.  Jackson,  51  X.  H.  9.  10;  iVnsell  v.  Water- 
house,  2  Chit.  1,  4;    Hollister  v.  Nowlen,  19  Wend.  234,  239. 

101  McDuffee  v.   Railroad  Co.,  52  N.  H.   430. 

102  Johnson  v.  Railway  Co.,  4  Exch.  367;  Central  R.  &  B.  Co.  v.  Lamp- 
ley,  76  Ala.  357;  Honeyman  v.  Railroad  Co.,  13  Or.  352,  10  Pac.  628;  Kim- 
ball V.  Railroad  Co.,  26  Vt.  247;  Pitlock  v.  Wells,  Fargo  &  Co.,  109  Mass. 
452;  Citizens'  Bank  v.  Nantucket  Steamboat  Co.,  2  Story,  16,  33,  Fed. 
Cas.  No.  2,730;    Sewall  v.  Allen,  6  Wend.  335,  346;    Kutei  v.  Railroad  Co.. 


108  Lake  Shore  &  M.  S.  R.  Co.  v.  Perkins.  25  Mich.  329;  Tunnel  v.  Petti- 
John,  2  Har.  (Del.)  48;  Knox  v.  Rives,,  14  Ala.  249;  Powell  t.  Mills,  30  Miss. 
231;    Hutch.  Carr.  §§  56a,  78,  112. 


§§  70-7  J]  DUTY  TO  CARRY  FOR  ALL.  328 

In  Dickson  v.  Groat  Northern  Ry.  Co./°*  Lindley,  J.,  said:  "At 
common  law  no  person  is  bound,  as  a  common  carrier,  to  carry  ojiy 
goods  of  a  liind  which  he  does  not  profess  to  carry.  Unless  he  pro- 
fesses to  carry  dogs  for  people  in  general,  he  is  not  bound  to  oarrj 
a  dog  for  any  particular  individual;  and,  if  a  carrier  says  he  will 
not  carry  dogs  except  on  certain  terms,  he  can  lawfully  refuse  to 
carry  any  particular  dog  on  any  other  terms.  In  this  case  the 
defendants  expressly  say  that  they  are  not  common  carriers  of  dogs, 
and  will  not  carry  dogs  except  on  their  own  terms.  The  common 
law,  therefore,  does  not  oblige  the  company  to  carry  dogs  at  all, 
and  at  common  law  no  action  will  lie  against  the  company  for  re- 
fusing to  carry  a  dog.  Moreover,  as  no  person  is  bound  to  enter 
into  an  agreement  with  one  person  simply  because  he  is  in  the  habit 
of  entering  into  similar  agreements  with  others,  a  company  which 
is  not  a  common  carrier  of  dogs,  but  which  may  be  in  the  habit  of 
carrying  dogs  on  certain  terms,  may,  at  common  law,  decline  to 
accept  any  particular  dog,  even  on  those  terms,  and  may  refuse  to 
carry  the  dog  at  all,  or  may  refuse  to  carrj- it  except  upon  some  other 
terms  which  the  company  may  specify.  At  common  law,  therefore, 
it  seems  to  me,  the  defendants  can  lawfully  refuse  to  carry  dogs 
except  upon  their  own  terms."  ^°^ 

1  Biss.  35,  Fed.  Cas.  No.  7,955.  Carriers  of  money,  Shelden  v.  RoMnsnn,  7 
N.  H.  157;  Kemp  v.  Coughtry,  11  Johns.  107,  109;  Emery  v.  Hersey,  4 
Greenl.  407;  Harrington  v.  M'Shane,  2  Watrs  (Pa.)  443;  Merwin  v.  Butler, 
17  Conn.  138;   Dwiglit  v.  Brewster,  1  Pick.  (Mass.)  50. 

104  18  Q.  B.  Div.  17G,  ISo.  He  may  be  compelled  to  cari-y  goods  only  upon 
the  terms  upon  which  he  professes  to  be  willing  to  carry,  and  therefore  he 
may  refuse  goods  tendered  at  an  unreasonable  hour,  or  at  a  place  not  the 
one  appointed  by  him.  Pickford  v.  Railway  Co.,  12  Mees.  &  W.  7GG.  And  see 
Lane  v.  Cotton,  1  Ld.  Raym.  G4G,  652;  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Flanagan,  113  Ind,  488,  14  N.  E.  370;  Croukite  v.  Wells,  32  N.  Y.  247.  Goods 
must  be  offered  for  carriage  a  reasonable  time  before  the  hour  at  which  the 
train  staits.  Palmer  v.  Railway  Co.,  35  Law  J.  C.  P.  289;  Carton  v.  Railway  Co., 
28  Law  J.  C,  P.  306.  A  carrier  may  refuse  to  receive  goods  tendered  an  un- 
reasonable time  before  they  are  to  be  shipped.  See  Lane  v.  Cotton,  1  Ld. 
Raym.  646,  652. 

106  Honey  man  v.  Railroad  Co.,  13  Or.  352,  10  Pac.  628. 


324  CARRIERS    OF   GOODS.  [Ch.   7 

Same — Means  and  Route. 

A  common  carrier  is  not  bound  by  his  general  public  obligation 
to  provide  other  means  of  transportation  than  such  as  it  owns, 
uses,  or  holds  out  to  the  public  on  its  own  route  for  that  purpose/*" 
"Thus,  common  carriers  by  wagon  cannot  be  required  to  carry  by 
railroad.  Nor  can  carriers  by  water  be  required  to  carry  by  land, 
nor  can  a  carrier  be  required  to  carry  to  a  point  or  by  a  route  to 
which  his  business  does  not  extend."  ^°^ 


72.  Common  carriers  are  not  obliged  to  accept  goods  -w^lien 
their  facilities  are  insufficient  to  handle  them,  nor 
are  they  obliged  to  provide  sufficient  facilities,  ex- 
cept: 
EXCEPTION — By  statute,  in  many  states,  railroad  com- 
panies must  provide  facilities  sufficient  to  handle 
all  the  traffic  w^^hich  can  be  reasonably  anticipated. 

A  common  carrier  is  not  bound  to  supply  more  carts  than  he  is 
in  the  habit  of  employing,  because  more  goods  are  tendered  than 
usual.*"*     Therefore  he  is  not  obliged  to  accept  and  carry  goods  if 
the  vehicle  which  he  ordinarily  employs  for  the  transportation  of 
goods  is  not  able  to  contain  the  article  which  is  offered.*"®     But,  as 
regards  railway  companies,  this  must  be  received  with  some  qualifi- 
cation.    If  the  pressure  of  traffic  is  such  as  the  company  might  rea- 
sonably have  anticipated  and  provided  for,  it  is  probable  that  they 
would  not  be  released  from  the  liability  to  receive  goods  on  the 
ground  of  want  of  conveniences.**"     They  are  under  a  duty  to  sup- 
ply reasonably  sufficient  facilities,  in  return  for  the  special  priv- 
ileges enjoyed  by  them.     The  statutes  of  most  of  the  states  ex- 
pressly require  them  to  do  so.     Under  such  statutes,  a  railroad  corn- 
ice Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Morton,  61  Ind.  539;   Pitlock  v.  Wells, 
Fargo  &  Co.,  109  Mass.  452. 
10  7  Hutch.  Carr.  §  56b.    See,  also,  "Connecting  Carriers,"  post,  p.  4G3. 
108  Wood,  Browne,  Carr.  §  73;  Johnson  v.  Railway  Co.,  4  Exch.  367,  373. 
108  The  carrier  must  provide  facilities  adapted  to  the  kind  of  freight  received 
for  shipment.    Beard  v.  Railway  Co.,  79  Iowa,  518.  44  N.  W.  800. 

110  See  Wallace  v.  Railway  Co.,  17  Wkly.  Rep.  464;    Peet  v.  Railway  Co., 
'20  Wis.  594;  Galena  &  a  U.  R.  Co.  v.  Rae,  18  lU.  488. 


§  73]  DUTY  TO  CARRY  FOR  ALL.  825 

pany  is  not  liable  for  failure  to  provide  for  an  extraordinary  or 
unusual  influx  of  freight.^"  Where  a  shipper  applies  to  a  rail- 
road coni]niny  for  cars,  to  be  furnished  at  a  certain  time  and  place, 
it  is  the  duty  of  the  company  to  inform  the  shipper  in  a  rea- 
sonable time  whether  it  is  able  to  furnish  such  cars;  and,  if  it  fails 
to  do  so,  it  is  liable  to  the  shipper  for  damages  caused  by  the  de- 
lay.^ ^« 

73.  A  common  carrier  is  not  obliged  to  accept  dangerous 
or  suspicious  goods,  or  goods  unfit  for  shipping. 

A  carrier  may  refuse  to  accept  goods  not  properly  packed  for 
shipping,^^^  or  goods  which  are  dangerous,  or  likely  to  injure  goods 
already  received. ^^*  T\niere  the  goods  are  of  a  suspicious  char- 
acter, he  may  refuse  to  receive  them  unless  made  acquainted  with 
their  contents.^^°  Otlierwise  he  has  no  right  to  insist  upon  being 
informed  of  the  contents  of  packages  offered  for  carriage.*^"      A 

111  Toledo,  W.  &  W.  Ry.  Co.  v.  Lockhart.  71  lU.  G27;  Galena  &  C.  U.  U.  Co. 
V.  Rae,  18  111.  488;  Faulkner  v.  Railroad  Co.,  51  Mo.  311;  Condict  v.  Railway 
Co.,  54  N.  Y.  500;  Chicago,  St.  L.  &  P.  R,  Co.  v.  Wolcott  (Ind.  Sup.)  39  N.  E. 
451. 

112  Ayres  v.  Railway  Co.,  71  Wis.  372,  37  N.  W.  432;  Newport  News  &  M. 
V.  R.  Co.  V.  Mercer  (Ky.)  29  S.  W.  301;  Chicago,  St.  L.  &  P.  R.  Co.  v.  Wol- 
cott (Ind.  Sup.)  39  N.  E.  451.  And  see  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hodge  (Tex. 
Civ.  App.)  30  S.  W.  829;  International  &  G.  N  R.  Co,  v.  Young  (Tex.  Civ. 
App.)  28  S.  W.  819  As  to  the  measure  of  damages,  see  Newport  News  &  M. 
V.  R.  Co.  V.  Mercer  (Ky.)  29  S.  W.  301. 

113  Vicksburg  Liquor  &  Tobacco  Co.  v.  United  States  Exp.  Co.,  G8  Miss.  149, 
8  South.  332;  Union  Exp.  Co.  v.  Grabam,  20  Ohio  St.  595.  Goods  packed  so 
defectively  as  to  entail  upon  the  carrier  extra  care  and  risk  may  be  refused. 
Munster  v.  Railway  Co.,  27  Law  J.  C.  P.  308,  312.  Hart  v.  Baxendale.  16  Law 
T.  (N.  S.)  396. 

114  The  Nith,  86  Fed.  86. 

115  Nitro-Glycerine  Case,  15  Wall.  524,  Brass  v.  Maitlaud,  6  El.  &  Bl.  485; 
Crouch  V.  Railroad  Co.,  14  C.  B.  285,  291;    Riley  v.  Home,  5  Bing.  217,  222. 

118  Nitro-Glycerine  Case,  15  Wall.  524;  Crouch  v.  Railroad  Co..  14  C.  B. 
285,  291;  Dinsmore  v.  Railroad  Co.,  3  Fed.  593  The  right  of  the  company  to 
have  parcels  opened  extends  only  to  those  suspected  to  contain  dangerous  ar 
tides.  They  have  no  general  right,  in  all  cases,  and  under  all  clrcumstauces 
to  be  informed  of  the  contents  tendered  lo  be  carried.  Crouch  v.  Railway  Co.. 
14  0.  B.  255.    Where  a  customer  negligently  fails  to  inform  the  carrier  of  tt?*. 


32(5  CARRIERS   OF    GOODS.  [Ch.  7 

carrier  may  refuse  goods  of  such  a  character  that  they  are  likely 
to  be  destroyed  by  a  mob.^^^ 

.     r 

74.  Common  carriers   arer"not  obliged  to  carry  goods  un- 

less the  transportation  charges  are  paid  in  advance. 

Since  common  carriers  cannot  choose  with  whom  they  will  deal, 
but  must  carry  indifferently  for  all  who  offer,  it  is  but  just  that 
their  compensation  shall  be  absolutely  assured  to  them.  There- 
fore the  law  gives  them,  not  only  a  lien  upon  the  goods  carried, 
for  their  reasonable  charges,^^^  but  also  authorizes  them  to  require 
payment  in  advance.^^®  If  such  prepayment  is  not  made  on  de- 
mand, the  carrier  is  under  no  obligation  to  transport  the  goods. 
The  money  is  not  required  to  be  paid  down  until  the  carrier  re- 
ceives the  goods  which  he  is  bound  to  carry.^^"  A  carrier  should 
therefore  first  accept  the  goods,  and  then  demand  payment  as  a 
condition  precedent  to  transporting  them.^^^  Payment  in  advance 
may,  of  course,  be  waived,  and  is  waived  by  an  actual  acceptance 
for  carriage  without  a  demand  for  prepayments^* 

75.  Common  carriers  are  not  obliged  to  accept  goods  -when 

oflfered  by  one  not  their  owner  or  the  owner's  au- 
thorized agent. 

Common  carriers  are  bound  to  accept  goods  for  transportation 
only  when  offered  by  their  lawful  owner  or  his  authorized  agent.^*' 

dangerous  nature  of  a  parcel,  he  will  be  liable  for  damages  caused  by  it. 
Farrant  v.  Barnes,  31  Law  J.  C.  P.  137.  11  C.  B.  (N.  S.)  553. 

117  Edwards  v.  Sherratt,  1  East.  604;  Porcher  v.  Railroad  Co.,  14  Rich.  Law 
(S.  C.)  181.  184;  Story,  Bailm.  §  508;  Hutch.  Carr.  §  115;  Pearson  v.  Duane, 
4  Wall.  605. 

1 1 8  See  post,  p.  M2. 

118  Fitch  V.  Newberiy,  1  Doug.  (Mich.)  1;  Pickford  v.  Railway  Co.,  8 
Mees.  &  W.  372;  Bastard  v.  Bastard.  2  Shaw.  81;  VVyld  v.  Pickford,  8  Mees. 
&  W.  443. 

120  Pickford  v.  Railway  CJo.,  8  Mees.  &  W.  372. 

121  Hutch.  Carr.  §  116. 

122  Hutch.  Carr.  §  117;  Grand  Rapids  &  L  R.  Co  v.  Dlether.  10  Ind.  App. 
206,  37  N.  E.  39,  1069. 

128  Fitch  V.  Newberry,  1  Doug.  (Mich.)  1;  Qiirl«y  v.  Armstead,  148  Mass. 
267,  19  N.  E.  389;    Hutch.  Carr.  §  115a, 


§    76]  DUTY    TO    FURNISH    EQUAL    FACILITIES    TO    ALL.  327 

If  they  do  so,  however,  in  good  faith,  while  they  might  not  he  liable 
for  conversion,  yet  they  would  have  no  lion,  as  against  the  true 
owner,  for  their  charges.^ ^*        ^ 

SAME— DUTY  TO  FURNISH  EQUAL  FACILITIES  TO  ALL. 

76.  Common  carriers  must  carry  indifferently  for  all  w^ho 
offer.  They  cannot  make  unjust  discriminations 
between  customers,  or  grant  monopolies. 

Common  carriers  are  bound  to  carry  indifferently,  within  the 
usual  range  of  their  business,  for  a  reasonable  compensation,  all 
freight  offered.^ ^°  All  applying  have  an  equal  right  to  have  their 
freight  transported,  in  the  order  of  their  application.^^®  Carriers 
cannot  legally  give  undue  and  unjust  preferences,  or  make  unequal 
and  extravagant  charges.  Having  the  means  of  transportation, 
they  are  liable  to  an  action  if  they  refuse  to  carry  without  just 
ground  for  such  refusal.  The  very  definition  of  a  "common  carrier" 
excludes  the  idea  of  the  right  to  grant  monopolies,  or  to  give  spe- 
cial and  unequal  preferences.  It  implies  indifference  as  to  whom 
they  may  serve,  and  an  equal  readiness  to  serve  all  who  may  apply, 
and  in  the  order  of  their  application.^ '^'^  "That  is  not,  in  the  ordinary 
legal  sense,  a  public  highway,  in  which  one  man  is  unreasonably 
privileged  to  use  a  convenient  path,  and  another  is  unreasonably 
restricted  to  the  gutter;  and  that  is  not  a  public  service  of  common 
carriage,  in  which  one  enjoys  an  unreasonable  preference  or  ad- 
vantage, and  another  suffers  an  unreasonable  prejudice  or  disad- 
vantage.    A  denial  of  the  entire  right  of  service,  by  a  refusal  to 

124  Fitch  V.  Newberry,  1  Doug.  (Mich )  1;  Gurley  /.  Armstoad.  1  IS  Mass. 
267,  19  N.  E.  389. 

125  New  England  Exp.  Co.  v.  Maine  Central  R.  Co  57  Me.  188;  Inter- 
national Exp.  Co.  V.  Grand  Trunk  Ry.  ot  Canada.  81  Me.  92,  16  Atl.  370: 
Houston  &  T.  C.  Ry.  Co.  v.  Smith.  63  Tex.  322;  McDuffee  v.  Railroad.  52  N. 
H.  430;    Messenger  v.  Railroad  Co..  37  N.  J    Law.  531. 

126  Houston  &  T.  C.  Ry.  Co.  v.  Smith,  63  Tex  322;  Great  Western  Ry. 
Co.  of  Canada  v.  Burns,  60  111.  284;  Cl;icag.  &  N.  R.  Co.  v.  People.  56  111. 
365;  Chicago  &  A.  R.  Co.  v.  People.  67  Hi  11;  Wibert  v.  Railroad  Co..  12 
N.  Y.  245;    Keeney  v.  Railroad  Co..  47  N.  Y.  525. 

127  New  England  Exp.  Co.  v.  Railroad  Co.,  57  Mi  188;  Chicago.  SL  I^  & 
P.  R.  Co,  V.  Wolcott  (Ind.  Sup.)  39  N.  E.  451. 


328  CARRIERS    OF    GOODS.  [Cll.   7 

carry,  differs,  if  at  all,  in  degree  only,  and  tlie  amount  of  damage 
done,  and  not  in  the  essential  legal  character  of  the  act,  from  a 
denial  of  the  right  in  part  by  an  unreasonable  discrimination  in 
terms,  facilities,  or  accommodations.  Whether  the  denial  is  gen- 
eral, by  refusing  to  furnish  any  transportation  whatever,  or  spe- 
cial, by  refusing  to  carry  one  person  or  his  goods;  whether  it  is 
direct,  by  expressly  refusing  to  carry,  or  indirect,  by  imposing  such 
unreasonable  terms,  facilities,  or  accommodations  as  render  car- 
riage undesirable;  whether  unreasonableness  of  terms,  facilities, 
or  accommodations  operate  as  a  total  or  a  i)artial  denial  of  the 
right;  and  whether  the  unreasonableness  is  in  the  intrinsic,  in- 
dividual nature  of  the  terms,  facilities,  or  accommodations,  or  in 
their  discriminating,  collective,  and  comparative  character, — the 
right  denied  is  one  and  the  same  common  right,  which  would  not  be 
a  right  if  it  could  be  rightfully  denied,  and  would  not  be  common, 
in  the  legal  sense,  if  it  could  be  legally  subjected  to  unreasonable 
discrimination,  and  parceled  out  among  men  in  unreasonably  su- 
perior and  inferior  grades  at  the  behest  of  the  servant  from  whom 
the  service  is  due."  ^*' 

The  ^''Express  Cases." 

In  New  England  Express  Co.  v.  Maine  Central  R.  Co.,^^^  it  was  held 
that  an  agreement  by  which  a  railroad  company  contracted  to  give  one 
express  company  the  exclusive  use  of  a  separate  compartment  in  a  car 
attached  to  each  of  their  passenger  trains,  for  the  purpose  of  trans- 
porting the  exjjress  company's  messenger  and  merchandise,  and 
agreed  not  to  give  any  other  express  company  like  privileges,  was 
illegal,  and  that  an  express  company  which  had  been  refused  such 
facilities  might  maintain  an  action  for  damages.  Similar  conclusions 
were  reached  in  like  cases  in  New  Hampshire  ^^°  and  Pennsylvania.^^ ^ 
In  Southern  Express  Co.  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.,^^^  Justice 
Miller,  on  the  circuit,  held  that  a  railroad  company  was  not  only 
bound  to  carry  the  goods  offered  by  an  express  company,  but  was 
bound  to  furnish  special  cars  for  that  purpose,  and  to  permit  an  ex- 

128  McDuffee  v.  Railroad  Co.,  52  N.  H.  430,  45a 
128  57  Me.  188. 

130  McDufifee  v.  Railroad  Co.,  52  N.  H.  430. 
i«i  Saudford  v.  Railroad  Co.,  24  Pa.  St.  378. 
i«2  10  Fed.  210,  8U9. 


§    7G]  DUTY    TO    FURNISH    EQOAL    FACILITIKS    TO    AI-I-.  329 

press  messenger  to  accompany  and  have  charge  of  the  goods.'""  On 
appeal  to  the  supreme  court  of  the  United  States,  this  decision  was 
reversed,  and  it  was  held  ^**  that,  while  railroad  companies  must  fur- 
nish the  public  with  an  express  service,  such  companies  are  not 
obliged  to  furnish  express  facilities  to  all  applying  to  them,  but  that 
they  perform  their  whole  duty  to  the  public  at  large,  and  to  each  indi- 
vidual, when  they  afford  the  public  all  reasonable  accommodations. 
"If  this  is  done,  the  railroad  company  owes  no  duty  to  the  public  as  to 
the  particular  agencies  it  shall  select  for  that  purpose.  The  public 
require  the  carriage,  but  the  company  may  choose  its  own  appropriate 
means  of  carriage,  always  provided  they  are  such  as  to  insure  reason 
able  promptness  and  security."  Justice  Miller  dissented  on  the 
ground  that  railroad  companies,  as  common  carriers,  are  under  legal 
obligation  to  carry  express  matter  for  any  one  engaged  in  that  busi- 
ness, in  a  manner  appropriate  and  usual  to  that  business.  Justice 
Field  concurred  in  this  view. 

In  Sargent  v.  Boston  &  L.  R.  Corp.,^^"*  it  was  held  that  a  railroad 
company  is  not  obliged  to  furnish  an  expressman  with  facilities  and 

138  See.  also,  Texas  Exp.  Co.  v.  Texas  &  P.  Ry.  Co.,  6  Fed.  426;  Southern 
Exp.  Co.  V.  Memphis,  etc.,  K.  Co..  8  Fed.  TiJi). 

134  St.  Louis,  I.  M.  &  S.  Ry,  Co.  v.  Southern  Exp.  Co.,  117  U.  S.  1,  6  Sup.  Ct. 
542,  G28. 

135  115  Mass.  41G.  In  Atlantic  Exp.  Co.  v.  Wilmin.ston  &  W.  R.  Co.,  Ill 
N.  C.  463,  16  S.  E.  393,  it  was  held  that  a  statute  providing  that  it  shall  be 
unlawful  for  any  common  carrier  to  give  any  unreasonable  preference  to  any 
particular  person,  company,  or  locality,  or  any  particular  description  of 
traffic,  or  to  subject  any  person,  company,  or  locality,  or  any  particular  de- 
scription of  traffic  to  any  undue  disadvantage,  did  not  change  or  enlarge  the 
duty  imposed  on  railroad  companies  by  the  commc  n  law,  under  which  they 
are  not  obliged,  because  they  furnish  facilities  to  one  express  company,  to 
furnish  othfi-  expre.ss  companies  with  facilities  for  doing  an  express  busi- 
ness on  their  roads,  the  same  in  all  respects  as  they  provide  for  themselves, 
or  afford  to  any  particular  express  company,  where  suc>  railroad  companies 
have  never  held  themselves  out  as  common  carriers  of  express  companies.  A 
regulation  concerning  freight  rates,  which  provides  that  no  railroad  company 
shall,  by  reason  of  any  couti-act,  with  any  express  or  other  company,  refuse  to 
act  as  a  common  carrier,  to  transport  any  article  proper  for  transportation  by 
the  train  for  which  it  is  offered,  does  not  require  railroad  companies  to  fur- 
nish an  express  company  with  facilities  for  carrying  on  its  business  on  their 
roads,  but  simply  requires  them  to  transport  articles.    Id. 


330  CARRIERS    OF    GOODS.  [Ch.   7 

accommodations  different  in  kind  from  those  furnished  the  general 
public.  The  court  said:  '^"e  know  of  no  principle  or  rule  of  law 
which  imposes  upon  a  railroad  corporation  the  obligation  to  perform 
service  in  the  transportation  of  freight,  otherwise  than  as  a  carrier  of 
goods  for  the  ow^ner  in  accordance  with  their  consignment,  or  which 
forbids  it  from  establishing  uniform  regulations,  applicable  alike  to 
all  persons  composing  the  public  to  whom  the  service  is  due.  We 
are  pointed  to  no  provision  in  the  charters  of  these  defendants,  or  in 
the  general  laws  relating  to  railroads,  which  subjects  the  use  of  their 
roads  to  the  convenience  or  recjuirements  of  other  carriers  than  the 
corporations  authorized  to  construct  and  operate  them,  and  such 
other  railroads  as  may  have  been  authorized  to  enter  upon  or  unite 
with  and  use  them."  In  this  case  there  was  no  refusal  to  carrj'  the 
plaintiff  and  his  freight  upon  the  same  terms  and  in  the  same  manner 
as  the  defendant  performed  like  service  for  other  companies.  The 
defendant  was  itself  carrying  on  an  express  business,  and  it  merely 
refused  to  permit  the  plaintiff  to  occupy  a  portion  of  the  space  in  the 
oars  and  stations  in  the  same  manner,  and  for  the  same  purposes,  as 
the  defendant  itself  used  and  occupied  them,  paying  therefor,  and  for 
the  required  transportation,  some  special  rate,  which  could  not  well 
be  adjusted  otherwise  than  by  special  agreement. 

In  Pnster  v.  Central  Pac.  R.  Co./^^  it  was  distinctly  held  that  rail- 
road companies  were  not  required  to  furnish  express  facilities  to  all, 
alike,  who  demand  them.  "The  inconveniences  which  would  follow 
from  requiring  railroad  companies  to  extend  equal  express  facilities 
to  all  persons,  companies,  and  corporations  regularly  engaged  in  the 
express  business  would  be  multiplied  beyond  measure  were  they, 
either  with  or  without  previous  notice,  required  to  furnish  like  ac- 
commodations to  each  individual  who  might  at  any  time,  and  for  a 
single  trip,  see  fit  to  demand  them. 

188  70  Cal.  1G9,  11  Pac.  686.  And  see  Atlantic  Exp.  Co.  v.  Wilmington  & 
W.  R.  Co.,  Ill  N.  a  463,  16  S.  B.  393. 


§77]  RIGHT    TO    COMPENSATION.  831 


SAME— RIGHT  TO  COMPENSA.TION. 

77.  Oommon  carriers  are  entitled  to  a  reasonable  compen- 
sation, and  no  more,  for  their  services. 

Common  carriers,  although  obliged  to  carry  goods  for  all  who  of- 
fer, are  not  obliged  to  do  so  gratis,  nor  even  for  an  unreasonably 
low  compensation.  Such  a  requirement  would  amount  to  a  confis- 
cation of  their  property.  Neither  can  they  demand  whatever  sum 
they  see  fit;  for,  if  that  were  permitted,  they  might  practically  nul- 
lify their  obligation  to  carry  for  all,  by  asking  exorbitant  rates. 
The  result  is  that  common  carriers  are  entitled  to  a  reasonable  com- 
pensation for  their  services,  but  to  no  more.^*^ 

Rate — How  Fixed. 

The  amount  of  compensation  may  be  fixed  in  several  ways.  The 
rate  may  be  fixed  by  statute,  which,  of  course,  will  prevail  unless 
the  parties  have  agreed  upon  a  different  rate.^^®  But,  if  the  stat- 
ute fixes  a  maximum  rate  which  is  unreasonably  low,  it  isjincou- 
stitutional ;  for  its  effect  is  to  deprive  one  of  property  without  duo 

187  Louisville,  E.  &  St.  L.  R.  Co.  v.  Wilson,  119  Ind.  352,  21  N.  E.  ^41;  Har 
ris  V.  Packwood,  3  Taunt.  264;  London  &  N.  W.  K.  Co.  v.  Eversbed,  L-  II.  3  App 
Oas.  1029;  Holford  v.  Adams,  2  Dner.  471;  Camblos  v.  Railroad  Co..  4  Brewst 
563.  The  shipper  may  maintain  an  action  for  refusal  to  carry  upon  reason 
able  terms.  Carr  v.  Railway  Co.,  7  Exch.  707,  per  Parke,  B.  Unreason 
able  charges  exacted  may  be  recovered.  Baldwin  v.  Steamship  Co..  74  N 
Y.  125;  Peters  v.  Railroad  Co.,  42  Ohio  St.  275;  McGregor  v.  Railway  Co. 
35  N.  J.  Law,  89;  Atchison  &  N.  R.  Co.  v.  Miller,  10  Neb.  601,  21  N.  W.  451 
Harmony  v.  Bingham,  12  N.  Y.  99,  1  Duer.  209;  Mobile  &  M.  lif-  Co.  v 
Steiner,  61  Ala.  559;   Lafayette  &  I.  R.  Co.  v.  Pattisou,  41  Ind.  312. 

188  The  legislature  may  regulate  rates  within  reasonable  limits.  Munn  v. 
Illinois,  94  U.  S.  113;  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  Id.  155;  Peik  v.  Rail- 
way Co.,  Id.  164;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley,  Id.  179;  Rup.gles  v. 
IlUnois,  108  U.  S.  526,  2  Sup.  Ct.  832;  Stone  v.  Trust  Co.,  116  U.  S.  307,  6  Sup. 
Ct.  334,  388,  1191;  Dow  v.  Beidelman,  125  U.  S.  680,  8  Sup.  Ct.  1028;  Georgia 
Railroad  &  Banking  Co.  v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47;  Chicago.  M. 
&  St.  P.  Ry.  Co.  V.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct.  462,  702;  Wt'l'niau 
v.  Railway  Co.,  83  Mich.  592,  47  N.  W.  489;  Pennsylvania  R,  Co.  v.  MilV-' 
132  U.  S.  75,  10  Sup.  Ct  34. 


,^^XZtet<     :,.  C^^oOi^    ^  «--'-^  •  '^-*— 


332  CARRIERS    OF   G00D3.  [Ch.  7 

process  of  law.*"  Where  there  is  a  contract  rate,  that  will  pre- 
vail;**" and  in  the  absence  of  an  express  contract  the  usual  or 
customary  rate  governs,^*^  if  there  is  one,  and,  if  not,  then  a  rea- 
sonable compensation  may  be  recovered.  What  is  a  reasonable 
compensation  is  a  question  of  fact. 

Amount — How  Calculated. 

The  carrier  can  recover  compensation  "on  that  amount  only  which 
is  put  on  board,  carried  throughout  the  whole  voyage,  and  delivered 
at  the  end  to  the  merchant."  ^*^  All  three  conditions  must  concur, 
to  entitle  the  carrier  to  compensation.     So^if  grain  heats  and  in- 

.  creases  in  bulk  during  transportation,  the  carrier  is  not  for  that 
reason  entjtledtojj.creased_CQni]a£n§alii}nJ.*^  On  the  other  hand, 
he  is  entitled  to  no  compensation  for  the  carriage  of  goods  lost 
during  transportation,  unless  a  lump  sum  was  to  be  paid,  regard- 
less of  the  loss  of  a  part  of  the  goods.^**  It  is  immaterial  that 
the  goods  have  become  damaged  and  worthless  en  route,  provided 

*  it  was  from  a  cause  for  which  the  carrier  was  not  responsible.  If 
he  carries  them  to  their  destination,  and  is  ready  to  deliver,  he  is 
entitled  to  his  freight.**^  "The  true  test  of  the  right  to  freight 
is  the  question  whether  the  service  in  respect  of  which  the  freight 
was  contracted  to  be  paid  has  been  substantially  performed;   and 

139  stone  V.  Trust  Co.,  116  U.  S.  307,  335,  336,  6  Sup.  Ct.  334,  3SS,  1191; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct.  462,  702. 

1*0  Atchison  &  N.  R.  Co.  v.  Miller,  16  Neb.  661,  21  N.  W.  451;  Smith  v. 
Findley,  34  Kan.  316,  8  Pac.  871;  Baldwin  v.  Steamship  Co.,  74  N.  Y.  125. 
Cf.  Southern  Exp.  Co.  v.  BouUment,  100  Ala.  275.  13  South.  941. 

1*1  Killmer  v.  Railroad  Co.,  100  N.  Y.  395,  3  N.  E.  293;  London  &  N.  W. 
Ry.  Co.  V.  Evershed,  L.  R.  3  App.  Cas.  1029. 

1*2  Gibson  v.  Sturge,  10  Exch.  622. 

1*3  Gibson  v.  Sturge,  10  Exch.  622. 

1**  The  Collenberg,  1  Black,  170;  Price  v.  Hartshorn,  44  Barb.  655;  Steel- 
man  V.  Taylor,  3  Ware,  52,  Fed.  Cas.  No.  13,349;  The  Cuba,  3  Ware,  260,  Fed. 
Cas.  No.  3,458;  Gibson  v.  Sturge,  10  Exch.  622;  The  Tangier,  32  Fed.  230; 
Gibson  v.  Brown,  44  Fed.  98. 

i*f;  Griswold  v.  Insurance  Co.,  3  Johns.  321;  Whitney  v.  Insurance  Co.,  18 
Johns.  208,  210;  McGaw  v.  Insurance  Co.,  23  Pick.  405;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Kemp  (Tex.  Civ.  App.)  30  S.  W.  714;  Steelman  v.  Taylor,  3  Ware,  52, 
Fed.  Cas.  No.  13,349;  The  Cuba,  3  Ware,  260,  Fed.  Cas.  No.  3,458;  Dakin  v. 
Oxley,  15  0.  B.  (N.  S.)  646;  Seaman  v.  Adler,  37  Fed.  268;  MacLachlau,  Ship. 
469,  470. 


contract  to  pay  the 
signee  is  the  owner/ 
t  was  known  to  thy 


§    77]  RIGHT   TO    COMPENSATION.  333 

according  to  the  law  of  England,  as  a  rule,  freight  is  earned  by  the 
carriage  and  arrival  of  the  goods  ready  to  be  delivered  to  the  mer- 
chant, though  they  be  in  a  damaged  condition."  ^** 

Who  Liable — Consignor  or  Consignee. 

The  consignor  or  shipper  is  originally  liable  to  tlie  carrier  for  the/ 
hire  or  freight  of  the  goods,  even  though  he  is  not  the  true  owner.^* ^ 
But  prima  facie  the  consignee  is  the  owner  of  the  goods,^*^  and  i/ 
therefore  liable  for  the  freight,  if  he  accepts  them.^*^  From  accept-/ 
ance  the  law  presumes  ownership,  and  implies  a  contract  to  pay  the 
charges,^ °°  But  the  presumption  that  the  consij 
may  be  rebutted,  in  which  case,  provided  the  fact 
carrier,  no  contract  to  pay  the  freight  will  be  implied  by  law,  though  / 
the  jury  may  find,  as  an  inference  of  fact,  from  all  the  circumstan/ 
ces  of  the  case,  a  contract  to  do  so.^"**  It  is  usual  for  bills  of  lad^  / 
ing  to  state  that  the  goods  are  to  be  delivered  to  the  consignee  or/ 
his  assigns,  he  or  they  paying  the  freight,  in  which  case  the  cony' 

146  Dakin  v.  Oxley,  15  C.  B.  (N.  S.)  646,  664.  Tbe  carrier  Is  entitled  to  full 
freight,  if  prevented  by  the  owner  from  completing  the  jouniey.  The  Gazelle 
and  Cargo,  128  U,  S.  474,  9  Sup.  Ct.  13'.);  Braithwaite  v.  Power  (N.  D.)  48  N. 
W.  354. 

14  7  Davison  v.  City  Bank,  57  N.  Y.  81;  Holt  v.  Westcott,  43  Me.  445;  Strong 
V.  Hart,  6  Bam.  &  C.  160;  Tapley  v.  Martens,  8  Term  K.  451;  Great  Western 
Ry.  Co.  V.  Bagge,  15  Q.  B.  Div.  625;  Drew  v.  Bird,  1  Moody  &  M.  156.  The 
shipper  named  in  a  bill  of  lading  is  liable  to  the  carrier  for  the  freight,  al- 
though he  does  not  own  the  goods,  and  the  carrier  has  waived  his  lien  thereon. 
Wooster  v.  Tarr,  8  Allen,  270.  And  see  Union  Freight  R.  Co.  v.  Wiukley,  159 
Mass.  133,  34  N.  E.  91. 

1*8  Davison  v.  City  Bank,  57  N.  Y.  81;  O'Dougherty  v.  Itailroad  Co.,  1 
Thomp.  &  C.  477;  Sweet  v.  Barney,  23  N.  Y.  335;  Lawrence  v.  Mlntimi,  17 
How,  100. 

149  Davison  v.  City  Bank,  57  N.  Y.  81;  Philadelphia  &  R.  R.  Co.  v.  Barnard, 
8  Ben.  39,  Fed.  Cas.  No.  11,086;  Kemp  v.  Clark,  12  Q.  B.  Div.  047;  Young  v. 
Moeller,  5  El.  &  Bl.  755;  Sanders  v.  Van  Zcller,  4  Q.  B.  Div.  260;  Cock  v. 
Taylor,  13  East,  399;  Gates  v.  Ryan,  37  Fed.  154;  North-German  Loyd  v. 
Heule,  44  Fed.  100. 

isoAbbe  v.  Eaton,  51  N.  Y.  410;  Merian  v.  Funck,  4  Denio,  110;  Davis  v. 
Pattison,  24  N.  Y.  317;  Hinsdell  v.  Weed,  5  Denio,  172;  Scalfe  v.  Tobln,  8 
Barn.  &  Adol.  523;   Coleman  v.  Lambert.  5  Mees.  &  W.  502. 

151  El  well  V.  Skiddy,  77  N.  Y.  282.  Such  a  contract  may  be  Implied  from 
previous  course  of  dealing.     Wilson  v.  Kynier,  1  Maule  &.  S.  157. 


334  CARRIERS    OF    GOODS.  [Ch.  7 

signee  or  his  assigns,  by  accepting  the  goods,  become  bound  to  pay 
the  freight. ^"^  And  the  fact  that  the  consignor  is  also  liable  to 
pay  the  freight  will  not,  in  such  a  case  make  any  difference. ^''^  It 
matters  not,  under  such  a  bill  of  lading,  whether  the  consignee  be 
the  owner  or  not.  The  law  implies  a  promise  on  his  part  to  pay 
the  freight.^"**  The  provision  that  the  consignee  or  his  assigns 
shall  pay  the  freight  has  been  held  to  be  for  the  sole  benefit  of  the 
shipper,  and  therefore,  if  the  carrier  delivers  without  receiving 
his  freight,  thereby  waiting  his  lien,  he  may  nevertheless  recover 
of  the  consignor.^"" 

Demurrage. 

Carriers  by  water  usually  provide  by  contract  for  the  payment 
by  the  consignee  of  a  certain  sum  for  each  day  the  carrier  is  de- 
tained by  reason  of  the  consignee's  failing  to  receive  the  cargo.^^^ 
This  is  called  "demurrage."  So,  in  the  absence  of  an  express  con- 
tract as  to  demurrage,  a  carrier  by  water  may  recover  for  any 
losses  sustained  by  his  detention  more  than  a  reasonable  time  for 
discharging  the  cargo.^^'^  This  right  exists,  however,  only  in  favor 
of  carriers  by  water.  A  railroad  company,  in  the  absence  of  con- 
tract, has  no  claim  for  charges  in  the  nature  of  demurrage.^"** 

The  mode  of  doing  business  by  the  two  kinds  of  carriers  is  es- 
sentially different.  Railroad  companies  have  warehouses  in  which 
to  store  freights.     Owners  of  vessels  have  none.     Railroads  dis- 

1B2  Hutch.  Carr.  §  449;    Story,  Bailm.  §  5S9;   Dougal  v.  Kemble,  3  Bing.  383. 

153  Abb.  Sbipp.  (3d  Ed.)  pt.  3,  c.  7;  Dougal  v.  Kemble,  3  Bing.  383;  Barker 
V.  Havens,  17  Johns.  234;  Domett  v.  Beckford,  5  Barn.  &  Adol.  521;  Shepard 
V.  De  Bemales,  13  East.  565. 

15*  Davison  v.  City  Bank,  57  N.  Y.  81. 

165  Hutch.  Carr.  §  451;   Shepard  v.  De  Bernales,  13  East,  5G5. 

186  Williams  v.  Theobald,  15  Fed.  4G5.  4G8;  Conard  v.  Insurance  Co.,  1  Pet. 
386,  446;  Chicago  «&  N.  W.  R.  Co.  v.  Jenkins,  103  111.  588;  Randall  v.  Lynch. 
2  Camp.  352. 

157  Huntley  v.  Dows,  55  Barb.  310;  Clendaniel  v.  Tuckerman,  17  Barb.  184; 
Morse  v.  Pesant,  *41  N.  Y.  16;  Horn  v.  Beususan,  9  Car.  &  P.  709;  Brouncker 
V.  Scott,  4  Taunt.  1;   Kell  v.  Anderson,  10  Mees.  &  W.  498. 

158  Chicago  &  N.  W.  R.  Co.  v.  Jenkins.  103  111.  588;  Burlington  &  M.  R.  R. 
Co.  V.  Chicago  Lumber  Co.,  15  Neb.  390,  19  N.  W.  451.  But  see  Hunt  v. 
Railroad  Co.  (Tex.  Civ.  App.)  31  S.  W.  523;  Freeman  v.  RaUroad  Co.,  32  Fla, 
420,  13  South.  892. 


§    78]  lUGHT   TO    COMPENSATION DISCRIMINATION.  335 

charge  cargoes  carried  by  them.     Carriers  by  ship  do  not,  but  it  is 
done  by  the  consignee."" 

78.  DISCRIMINATION— At  common  law,  common  carriers 
"wrere  aUow^ed  to  make  reasonable  discriminations  in 
regard  to  rates  charged. 

"The  leading  American  decisions  which  have  in  recent  times 
passed  upon  the  obligations  of  railway  companies  towards  the  pub- 
lic, in  their  relation  of  common  carriers,  have  been  uniform,  we 
think,  in  maintaining,  on  principles  of  the  common  law,  irrespective 
of  statutes,  that  their  duty  lies  in  the  strictest  impartiality  in  the 
conduct  of  their  business,  and  in  withholding  all  privileges  or 
preferences  from  one  customer  which  are  not  extended  to  all.*®" 
Pierce,  in  his  treatise  on  the  Law  of  Railroads,*®*  deduces  from  the 
cases  decided  the  follov.ing  proposition:  'A  railroad  company,  being 
under  a  public  obligation  as  a  common  carrier,  and  being,  in  a  cer- 
tain sense,  a  public  agent,  in  consequence  of  holding  by  delegation  the 
power  of  eminent  domain,  is  required  to  treat  the  public  witli  e(]nal- 
ity  and  fairness.  It  cannot  discriminate  in  the  transportation  of 
persons  and  merchandise,  by  giving  special  privileges  to  one  wliicli 
it  denies  to  another,* ^^  or  by  charging  for  the  same  service  higher 
rates  to  some  than  to  others.*®^  This  rule  is  not  to  be  inexorably 
applied,  so  as,  provided  the  rate  is  reasonable  for  all,  to  exclude 
contracts  for  transportation  at  a  less  rate  in  special  cases,  where, 
under  the  circumstances,  the  discrimination  appears  reasonable.'*"* 

169  Chicago  &  N.  W.  R.  Co.  v.  Jeukias,  supra. 

160  Hutch.  Carr.  §§  297-301.    See,  also,  ante,  p.  327. 

161  Page  498. 

182  Sandford  v.  Raih-oad  Co.,  24  Pa.  St.  378;  Audenrled  v.  Railroad  Co..  GS 
Pa.  St.  370;  New  England  Exp.  Co.  v.  Maine  Central  R.  Co.,  57  ile.  188;  Mc- 
DuECee  v.  Railroad,  52  N.  H.  430;  Chicago  &  N.  VV.  R.  Co.  v.  People.  5G  111. 
3(>5.  Common  carrier  cannot  discriminate,  in  favor  of  itself  or  any  of  its 
employes,  as  against  other  shippers.  Cumberland  Valley  Railroad  Co.'s  Ap- 
peal, G2  Pa.  St.  218. 

183  Messenger  v.  Railroad  Co.,  3G  N.  J.  Law.  407;  Cumberhind  Valley  Rail- 
road Co.'s  Appeal,  G2  Pa.  St.  218,  230;  Camblos  v.  Railroad  Co.,  4  Brewbt. 
5G3,  622;   Vincent  v.  Chicago  &  A.  R.  Co.,  49  111.  33. 

184  Fitchburg  R.  Co.  v.  Gage,  12  Gray.  393;    Sargent  v.  Railroad  Corp.,  115 


336  CARRIERS    OF    GOODS.  [Ch.   7 

"Hutchinson,  in  his  woric  on  Carriers,*^'*  in  a  note,  shows  that 
there  is  a  difference  of  opinion  upon  the  question  whether,  by  com- 
mon law,  the  common  carrier  was  bound  to  charge  the  same  rate 
for  the  same  service  to  all  parties;  and  he  quotes  from  Byles,  J.,^" 
as  follows:  1  know  no  common-law  reason  why  a  carrier  may  not 
charge  less  that  what  is  reasonable  to  one  person,  or  even  carry  for 
him  free  of  all  charge.'  ^®^  The  question  was  considered  in  Fitchburg 
Railroad  Co.  V.  Gage.^®^  The  court  said:  The  principle  derived  from 
that  source  [the  common  law]  is  very  plain  and  simple.  It  requires 
equal  justice  to  all.  But  the  equality  which  is  to  be  observed  in  re- 
lation to  the  public  and  to  every  individual  consists  in  the  restricted 
right  to  charge,  in  each  particular  case  of  service,  a  reasonable  com- 
pensation, and  no  more.    If  the  carrier  confines  himself  to  this,  no 

Mass.  416,  422;  Eclipse  Towboat  Co.  v.  Pontchartrain  R.  Co.,  24  La.  Ann.  1; 
Lough  V.  Outerbridge,  143  N.  Y.  271,  38  N,  E.  292;  McDuffee  v.  Railroad,  52 
N.  H.  430,  collecting  cases;  Southern  Exp.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  10  Fed.  210,  869,  3  Am.  &  Eng.  R.  Cas.  594,  602.  note;  Parker  v.  Railway 
Co.,  7  Man.  &  G.  253;  Ex  parte  Benson,  18  S.  C.  38;  Ragan  v.  Aiken,  9  Lea, 
009;  Johnson  v.  Railroad  Co.,  16  Fla.  023;  Baxendale  v.  Railway  Co.,  4  C.  B. 
(N.  S.)  63.  "There  was  nothing  in  the  common  law  to  hinder  a  carrier  from 
carrying  for  a  favored  individual  at  an  unreasonably  low  rate  or  even  gratis. 
All  that  the  law  required  was  that  he  should  not  charge  more  than  was  rea- 
sonable." Per  Blackburn,  J.,  in  Great  Western  Ry.  Co.  v.  Sutton,  38  L.  J. 
Exch.  177,  178,  L.  R.  4  H.  L.  226,  237.  Discrimination  in  the  making  of  con- 
tracts by  a  carrier  for  the  carriage  of  goods,  without  partiality,  is  inoffensive. 
Partiality  exists  only  in  cases  where  advantages  are  equal,  and  one  party  is 
unduly  favored  at  the  expense  of  another  who  stands  upon  an  equal  footing. 
Cleveland,  C,  C.  &  I.  Ry.  Co.  v.  Closser,  120  Ind.  348,  26  N.  E.  159;  Kentucky 
&  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  567. 

lOB  Section  302. 

168  Baxendale  v.  Railway  Co.,  4  C.  B.  (N.  S.)  63,  78. 

167  See,  also,  Menacho  v.  Ward,  27  Fed.  529;  Johnson  v.  Railroad  Co..  16  Fla, 
623;  Cowden  V.  Steamship  Co.,  94  Cal.  470,  29  Pac.  873;  Ex  parte  Benson,  18  S. 
C.  38;  Kelly  v.  Railroad  Co.  (Iowa)  61  N.  W.  957.  But  see  Messenger  v.  Rail- 
road Co.,  36  N.  J.  Law,  407;  Scotield  v.  Railway  Co.,  43  Ohio  St.  571;  Hays  y. 
Pennsylvania  Co.,  12  Fed.  309;  Ragan  v.  Aiken,  9  Lea  (Tenn.)  609.  Ac  agree- 
ment by  a  common  carrier  to  give  one  shipper  a  favor  and  advantage  over 
others  by  a  rebate  is  Illegal  at  common  law.  Fitzgerald  v.  Grand  Trunk  R. 
Co.,  63  Vt.  169,  22  Atl.  76.  The  courts  have  no  power  to  make  freight  or  pas- 
senger tariffs.    Pensacola  &  A.  R.  Co.  v.  State,  25  Fla.  310,  5  South.  833. 

i«8  12  Gray,  393. 


§    78]  RIGHT    TO    COMPENSATION DISCRIMINATION.  o37 

wrong  can  be  done,  and  no  cause  afforded  for  complaint.'^'*     The 
author,  in  the  discussion  contained  in  the  note,  shows  that  construe 

i«e  At  common  law  discrimination  in  rates  must  have  been  fair  and  reapon 
able,  and  founded  on  grounds  consistent  with  public  Interest,  or  it  was  not 
permitted.  Hersh  v.  Railway  Co.,  74  Pa.  St  181;  Chicago  &  A.  R.  Co.  T. 
People,  67  111.  11;  Fitchburg  R.  Co.  v.  Gage,  12  Gray,  393.  A  common  carrif-r 
cannot  lawfully  make  unreasonable  charges  for  his  services,  or  unjust  dis- 
crimination between  his  customers.  Cook  v.  Chicago,  II.  I.  &  P.  R.  Co.  81 
Iowa,  551,  46  N.  W.  lOSO.  "The  hinge  of  the  question  is  not  found  in  tlie  sin- 
gle fact  of  discrimination,  for  discrimination  without  partiality  is  Inoffensive, 
and  partiality  exists  only  in  cases  where  advautages  are  equal,  and  one  party 
is  unduly  favored  at  the  expense  of  another,  who  stands  upon  an  equal  foot- 
ing. Many  English  cases  support  this  general  doctrine.  Garton  v.  liailway 
Co.,  1  Best  &  S.  112;  Hozier  v.  Railway  Co.,  1  Nev.  &  McN.  27,  24  Law  T. 
339;  Great  Western  Ry.  Co.  v.  Sutton.  L.  R.  4  H.  L.  226,  238;  Ransome  v. 
Railway  Co.,  1  C.  B.  (N.  S.)  437;  .Tones  v.  Railway  Co.,  1  Nev.  &  McN.  45, 
3  C.  B.  (N.  S.)  718;  Oxiade  v.  Railway  Co.,  1  Nev.  &  McN.  72,  1  C.  B.  (N.  S.) 
454;  Baxendale  v.  Railway  Co.,  5  C.  B.  (N.  S.)  33<;;  Bellsdyke  Coal  Co.  \. 
North  British  Ry.  Co.,  2  Nev.  &  McN.  105.  The  current  of  judicial  opinion 
in  America  flows  in  the  general  channel  mailccd  out  and  opened  by  the  couvts 
of  England.  Bayles  v.  Railway  Co.,  13  Colo.  181.  22  Pac.  341;  Spofford  v. 
Railroad,  128  Mass.  326;  Fitchburg  R.  Co.  v.  Gage,  12  Gray,  393;  Johnson 
V.  Railroad  Co.,  16  Fla.  623;  Ragan  v.  Aiken,  9  Lea,  609;  McDufCee  v.  Rail- 
road, 52  N.  H.  430;  Hersh  v.  Railway  Co..  74  Pa.  St.  181;  Christie  v.  Rail- 
way Co.,  94  Mo.  453,  7  S.  W.  507;  Chicago  &  A.  R.  Co.  v.  People,  67  111.  11; 
Toledo,  W.  &  W.  Ry.  Co.  v.  Elliott.  TC  111.  07;  Erie  &  Pacilic  Despatch  v. 
Cecil,  112  111.  180,  185;  Root  v.  Railroad  Co..  114  N.  Y.  300,  21  N.  E.  403; 
Killmer  v.  Railroad  Co.,  100  N.  Y.  395,  3  N.  E.  293,  Stewart  v.  Railroad  Co., 
38  N.  J.  Law,  505;  Union  Pac.  Ry.  Co.  v.  U.  S.,  117  U.  S.  355,  0  Sup.  Ct.  772: 
Hays  V.  Pennsylvania  Co.,  12  Fed.  300;  Interstate  Commerce  Commission  v. 
Baltimore  &  O.  R.  Co.,  43  Fed.  37.  The  cases  of  State  v.  Cincinnati,  W.  &  B. 
Ry.  Co.,  23  N.  E.  928,  Scofield  v.  Railway  Co.,  43  Ohio  St.  571,  3  N.  E.  907, 
and  Messenger  v.  Railroad  Co.,  36  N.  J.  Law,  407,  are  not  entirely  out  of 
line  with  the  decisions  to  which  we  have  referred,  although  fragmeutarj'  ex- 
pressions, found  in  some  of  the  opinions,  seemingly  pass  the  lines  of  prin- 
ciple." Cleveland,  C,  C.  &  I.  Ry.  Co.  v.  Closser,  126  Ind.  348.  26  N.  E.  159. 
The  important  point  to  every  freighter  is  that  the  charge  shall  be  reasonable, 
and  a  right  of  action  will  not  exist  in  favor  of  any  one  unless  it  be  shown 
that  unreasonable  inequality  had  been  made  to  his  detriment.  A  reasonable 
price  paid  by  such  a  party  is  not  made  unreasonable  by  a  less  price  paid  by 
others.  Bayles  v.  Railway  Co.,  13  Colo.  181,  22  Pac.  341;  Scofield  v.  Rail- 
way Co.,  43  Ohio  St.  571,  600;  Christie  v.  Railway  Co.,  94  Mo.  453,  7  S.  W. 
567;    Fitchburg  R.  Co.  v.  Gage,  12  Gray,  393;    Hutch.  Carr.  §  302.    What  ia 

LAW  BAILM. — 22 


S38  C^ttBTKRS   OF   GOODS.  |^C^.  7 

tion  which  English  courts  hare  placed  upon  the  English  railway  and 
canal  traffic  act  of  ISol,  in  regard  to  preferences  in  the  rates  charged 

a  ceaaonalde  dbaige  is  oFdinarily  a  question  of  fact.  Root  t.  Railroad  Co., 
U4  X.  T.  3i».  21  N.  E.  403^    The  rate  chaiged  one  person  maj  be  evidence  in 

deTennining  whether  the  rate  chazsed  a]M}ther  is  reasonable.  Johnson  t. 
Railroad  Co.,  16  Fla.  623;  Menacho  t.  Ward,  27  Fed.  529;  Kelly  v.  Railway 
Co.  (Iowa)  61  N.  W.  957.  "The  charging  another  party  too  little  is  not  char- 
ging you  too  much."  Per  Crompton.  J.,  in  Garten  r.  Railway  Co.,  1  Best  &r  S. 
112,  154.  As  to  rebates,  see  ClcTelaud,  C  C,  &  L  R.  Co.  v.  dosser,  126  Ind. 
34S,  26  X.  E.  1^;  Root  t.  Long  Island  R.  Co..  114  N.  S.  3»X>.  21  N.  E.  403.  Dis- 
crlmliiatiorLs  based  solely  nnon  the  amntint  of  freight  shipped  are  discrimiiia.- 
ifons  in  faycr  of  capitaL  and  contrary  to  public  pcllcy.  and  therefore  void.  Hays 
V.  Pennsylvania  Co..  12  Fed.  SiJQ;  RothscMId  t.  Railrcad  Co.,  15  ilo.  App.  242; 
Wood,  Ry.  Law,  567:  Concord  &  P.  R.  Co.  t.  Forsaith,  59  N.  H.  122;  Nicholson 
T.  Railway  Co.,  1  Xev.  &  ilcN.  121;  Greenop  t.  Railway  Co.,  2  Xev.  &  McN.  319. 
A  railroad  company  cannot  discriminate  in  feror  of  a  shipper  who  is  able 
to  furnish  a  large     ~  :  :l:  -    -    orer  one  engaged  la  the  same  business 

who  is  unable  to  f-i:_  ?:i  :_:  r  ^jantity,— at  least,  where  both  ship  in  car- 

load lots^  LonisviUe.  £.  &  St.  L<.  GonsoL  R.  Co.  v.  Wilson.  132  Ind.  517,  32  N. 
E.  311.  "The  expense  of  handHng.  carrying,  and  storing  the  smaller  amoimt 
is  much  greater,  pro  rata,  than  that  of  the  ^une  operations  o^on  the  larger 
ajnount  in  one  body,  and  a  tiiscriminatiGc  in  favo-r  of  the  lai^er  dealers  is 
not  inequality,  but  reasonable  equality."  Concoid  &  P.  R.  Co.  r.  Forsaith, 
59  N.  H.  122.  In  Burlington,  C.  R.  &  N.  Ry.  Co.  t.  Northwestern  Fuel  Co.,  31 
Fed.  652.  a  contract  in  which  a  railway  company  agreed  to  charge  a  rate 
of  not  less  than  S2.40  per  ton  to  aU  persons  shipping  le^  than  100,000  tons 
of  coal  per  annum,  and  to  make  a  rate  of  fl.60  per  ton  to  all  persons  ship- 
png  orer  100,000  tons  per  anmiTin,  was  held  to  be  an  unreasonable  discrim- 
ination, as  tending  to  create  a  monopoly,  and  that  it  was  therefore  roid.  To 
same  eSect  is  Seofield  v.  Railway  Co..  43  Ohio  Hz.  571.  3  N.  E.  S07.  In  th.e  ab- 
sence  of  statute,  a  commoncarTteT  may  diseriminate  in  favor  of  Inngpr  dia- 


tances.  St.  Louis,  A.  &  T.  H.  K.  Co.  v.  HHI.  14  ill  App.  .'.TO;  Hersh  v.  Rail- 
way"T:o.,  74  Pa.  St.  188;  Shipper  v.  Railrcad  Co.,  47  Pa.  St.  338.  Common 
carriers  may  discriminate  between  clgerent  cliisses  of  goods,  where  the  risk 
and  fexpeaje  of  carrying  such  classes  of  g(>3«ls  are  different.  1  Wood,  Ry. 
Law,  570.  A  or.rnmoTi  ran-fpr  fgniiftt  dfsrrfminatp  sgafnst  nnA  who  refuses  to 
patronize  hirn  excluslTely.  Menacho  t.  Ward,  27  Fed.  529.  Discrimination 
on  the  ground  that  the  shipper  agrees  to  employ  other  lines  of  the  company 
for  traffic  distinct  from  the  goods  in  question  is  unreasonable.  Baxendale  ▼. 
Railway  Co.,  1  Nev.  &  ilcN.  191;  Bellsdyke  Coal  Co.  v.  North  British  Ry. 
Co.,  2  Xev.  &  ilcN.  105.  In  Chicago  &  A.  R.  Co.  v.  People,  67  HI.  11,  a  stat- 
ute forbidding  any  discrimination  whaterer,  under  any  circumstances,  wnetlier 
just  or  unjust,  was  held  to  be  unconstitotionaL 


§78]  RIGHT    TO    COMPEXSATI05 DIBCEnCDJATIOK.  839 

for  carrying.  That  act  has  been  interpreted  to  applv  to  preferences  of 
that  character,  and  constmed  not  to  prohibit  just  and  reasonable 
discriminations  in  that  respect-  Certainly  the  rule  of  the  common 
law  is  not  more  stringent  against  carriers  than  the  act  itself,  which 
was  passed  in  order  to  limit  and  restrict  them  in  their  dealings  with 
the  public.  In  this  connection  we  will  quote  some  of  the  comments 
of  the  author,  made  in  the  note:  'Although  the  purpose  of  the  act 
is  to  prevent,  among  other  things,  unreasonable  discrimination  in 
rates  to  the  prejudice  or  disadvantage  of  pariicular  individuals,  it 
was  not,  it  has  been  said,  to  relieve  everr  person  from  all  possible 
prejudice  or  disadvantage  from  any  arrangement  which  might  be 
made  by  the  carrier,  if  the  arrangement  was  for  the  benefit  of  the 
public  at  large,  for  the  reasonable  increase  of  the  business  and  profits 
of  the  carrier,  and  was  not  entered  into  with  a  view  to  the  advantage 
or  preference  of  one  parrs",  or  disadvantage  of  the  other.  *  *  *  So 
the  courts  will  not  intert'ere  if  the  charge  or  arrangement  will  greatly 
promote  the  interest  of  the  carrier,  without  unreasonably  prejudicing 
those  who  may  desire  to  employ  him.  or  will  be  beneficial  to  the  com- 
munity, though  disadvantageous  to  particular  individuals.  ♦  ♦  • 
But  though  the  court,  when  such  a  question  is  brought  before  it 
under  the  statute,  it  is  said,  will  feel  great  reluctance  in  interfering 
with  the  carrier  in  the  management  of  his  own  business,  and  his  in- 
terest must  be  taken  into  account,  yet,  if  the  discrimination  made 
by  him  subjects  others  to  unreasonable  disadvantages,  it  will  inter- 
fere, and  enjoin  the  canier  from  making  such  preferences.  And  so 
it  will  if  the  object  of  the  carrier  is  not  solely  his  own  advantage, 
but  also  to  give  a  preference  to  one  individual  to  the  disadvantage 
of  another,  or  to  one  locality  to  the  prejudice  of  another.*  "  ^'° 

Inother  words,  if  the  charge  on  the  goods  of  the  party  complainin^: 
isTeasonable.  and  such  as  the  company  would  be  required  to  adhere 
to  as  to  all  persons  in  like  condition,  it  may  nevenheless  lower  _the 
charge  of  another  person,  if  it  be  to  the  advantasze  of  the  company , 
not  inconsistent  with  public  interest,  and  based  on  a  sufiicient  rea- 
son.^" ^     But  if  the  discrimination  is  unjust,  and  is  intended  or  has  a 

17  0  Houston  &  T.  C.  Rj".  Co.  v.  Rust,  5S  Tei.  9S. 

I'l  Riigan  V.  Aiken,  9  Lea  (Teun.)  iW9;  Scotield  t.  Railway  Co..  43  Ohio 
St.  571,  3  N.  E.  907;  Kansas  Pac.  Ry.  Co.  v.  Bayles,  19  Colo.  34S,  35  Pac  744; 
Cleveland.  C,  C.  &  I.  R-  Co.  v.  Closser,  126  Ind.  34S.  26  N.  E.  159. 


340  CARRIERS    OF   GOODS.  [Ch.  7 

tendency  to  injure  another  shipper  in  his  bnsiness,  and  destroy  his 
trade  by  giving  to  the  favored  shipper  a  practical  moapp^ly,  it  is  jlle- 
gal^^'  Perhaps,  as  was  said  in  a  leading  case  upon  this  subject,  the 
doctrine  here  formulated  will  reconcile  all  the  cases  upon  the  facts 
(though  not  all  the  judges  have  said  in  them),  and  make  them  con- 
sistent.^^^ 

In  England,  by  the  railway  and  canal  traffic  act,^^*  and  in  this 

1T2  Burlington,  C.  R.  &  N,  Ry.  Ck).  v.  Northwestern  Fuel  Co.,  31  Fed.  652; 
Hays  V.  Pennsylvania  Ck).,  12  Fed.  309;  Denver  &  N.  O.  R.  Co.  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  15  Fed.  650;  Hersh  v.  Railway  Co.,  74  Pa.  St.  181;  Shipper 
V.  Railroad  Co.,  47  Pa.  St.  338;  Chicago  &  A.  R.  Co.,  v.  People,  67  III.  11; 
Concord  &  P.  R.  Co.  v.  Forsaith,  59  N.  H.  122;  Samuels  v.  Railroad  Co.,  31 
Fed.  57.  A  mere  reduction  from  an  ordinary  rate  is  not  necessarily  an  un- 
just, and  therefore  an  illegal,  discrimination.  Christie  v.  Railway  Co.,  94  Mo. 
453,  7  S.  W.  567;  Hays  v.  Pennsylvania  Co.,  12  Fed.  309.  In  Scofield  v. 
Railway  Co.,  43  Ohio  St.  571,  3  N.  E.  907,  a  contract  to  carry  for  the  Standard 
Oil  Company  at  a  rate  10  per  cent,  below  that  demanded  from  all  other  ship 
pers,  in  consideration  of  their  shipping  all  their  oil  over  the  carrier's  line,  was 
held  illegal,  as  tending  to  create  a  monopoly.  See  also.  Hays  v.  Pennsylvania 
Co.,  12  Fed.  309;  Kinsley  v.  Railroad  Co.,  37  Fed.  181;  State  v.  Railway  Co., 
47  Ohio  St.  130,  23  N.  E.  928;  Louisville,  E.  &  St  L.  Consol.  R,  Co.  v.  Wilson, 
132  Ind.  517,  32  N.  E.  311;  Handy  v.  RaUroad  Co.,  31  Fed.  689.  A  discrimina- 
tion in  rates  for  transportation  of  the  same  class  of  goods  of  different  shippers 
under  like  circumstances  Is  illegal  and  unreasonable.  Indianapolis,  D.  &  S. 
R.  Co.  V.  Ervin,  118  111.  250,  8  N.  E.  862;  Root  v.  RaiU-oad  Co.,  114  N.  Y.  800, 
21  N.  E.  403;  Scofield  v.  Railway  Co.,  43  Ohio  St  571,  3  N.  E.  907;  Messenger 
V.  Railroad  Co.,  36  N.  J.  Law,  407,  37  N.  J.  Law,  531;  Bayles  v.  Railway  Co., 
13  Colo.  181,  22  Pac.  341;  Hutch.  Carr.  §  302.  A  rebate  secretly  paid  by  a 
common  carrier  to  certain  shippers  is  an  unjust  discrimination  against  others 
shipping  the  same  class  of  goods  under  the  same  conditions,  and  the  excess- 
ive charge  may  be  recovered  back.  Cook  v.  Railway  Co.,  81  Iowa,  551,  36 
N.  W.  1080.  A  railroad  will  not  be  permitted  to  charge  one  rate  of  deliverj- 
to  one  warehouse  and  a  different  rate  to  another  (Vincent  v.  Railroad  Co.,  49 
111.  33;  Chicago  &  A.  R.  Co.  v.  People,  67  111.  11),  nor  to  refuse  altogether  to 
deliver  to  a  certain  warehouse  (Chicago  &  N.  W.  Ry.  Co.  v.  People,  56  lU.  365), 
or  stock  yard  (Coe  v.  Railroad  Co.,  3  Fed.  775);  nor  to  receive  and  deliver 
exclusively  at  one  stockyard  belonging  to  another  corporation,  and  charging 
for  the  use  thereof  in  addition  to  the  transportation  a  sum  for  the  benefit  of 
such  corporation.  Covington  Stock-Yards  Co.  v.  Keith,  139  U.  S.  128,  11  Sup. 
Gt  461. 

17  3  Scofield  V.  Railway  Co.,  43  Ohio  St  571,  3  N.  E.  907. 

1T4  17  iv  18  Vict.  c.  31  (1845).     The  following  are  the  chief  cases,  dealing 
with  preferential  tariffs  under  the  act,  which  have  been  decided  to  amount 


§   78]  RIGHT   TO    COMPENSATION DISCRIMINATION.  341 

country,  by  the  interstate  commerce  act  and  the  statutes  of  many  of 
the  states,  all  unreasonable  and  unjust  discrimination  in  rates  is  pro- 
hibited."^ 

to  undue  preferences:  Ransome  v.  Railway  Ck).,  liG  Law  J.  C.  P.  91,  1  C.  B. 
(N.  S.)  437  (to  favor  a  customer  in  competition  with  other  traders);  Oxlade 
V.  Railway  Co.,  2(j  Law  J.  C.  P.  129,  1  C.  B.  (N.  S.)  454  (to  introduce  a  partic- 
ular traffic  into  a  district);  Han-is  v.  Railway  Co.,  27  Law  J.  C.  P.  162,  3  C. 
B.  (N,  S.)  693  (to  buy  off  a  rival  scheme);  Evershed  v.  Railway  Co.,  48  I^w 
J.  Q.  B.  22,  3  App.  Cas.  1029  (to  enable  the  company  to  compete  with  other 
carriers);  Baxendale  v.  Railway  Co.,  28  Law  J.  C.  P.  09,  5  C.  B.  (N.  S.)  309 
(to  person  engaging  to  use  other  lines  of  the  company);  Baxendale  v.  Railway 
Co.,  2S  Law  J.  C.  P.  SI,  5  C.  B.  (N.  S.)  330  (to  accompany  itself  In  a  separate 
trade).    Redm.  Ry.  Carr.  c.  3. 

1T8A  maximum  rate  may  be  fixed  by  legislation.  Munn  v.  Illinois,  94  U.  S. 
113;  6  Myer,  Fed.  Dig.  717;  Ruggles  v.  Illinois,  108  U.  S.  520,  2  Sup.  Ct.  832; 
Laurel  Fork  &  S.  H.  R.  Co.  v.  West  Virginia  Transp.  Co.,  25  W.  Va.  324. 
Such  legislation  by  a  state  can  only  apply  to  shipments  wholly  within  the 
state.  Carton  v.  Railroad  Co.,  59  Iowa,  148,  13  N.  W.  67;  Wabash,  St.  L.  & 
P.  Ry.  Co.  V.  Illinois,  118  U.  S.  557,  7  Sup.  Ct  4.  Where  a  schedule  of  rates 
for  railroad  charges,  fixed  by  legislative  authority,  will  not  pay  the  cost  of 
necessary  service,  appliances,  and  the  repair  thereof,  and  interest  on  bonds, 
and  then  leave  something  for  dividends,  its  enforcement  will  be  enjoined. 
Chicago  &  N.  W.  R.  Co.  v.  Dey,  2  Interst.  Commerce  Com.  R.  325,  35  Fed. 
806;  Pensacola  &  A.  R.  Co.  v.  State,  2  Interet.  Commerce  Cora.  R.  522,  25 
Fla.  310,  5  South.  833.  Statutes  prohibiting  unjust  discriminations  have  been 
held  to  be  merely  declaratory  of  the  common  law.  Shipper  v.  Railroad  Co., 
47  Pa.  St.  338,  340;  Scofield  v.  Railway  Co.,  43  Ohio  St.  571,  3  N.  E.  907; 
Messenger  v.  Railroad  Co.,  36  N.  J.  Law,  407,  412.  But  in  Great  Western 
Ry.  Co.  V.  Sutton.  L.  R.  4  H.  L.  220.  238,  Blackburn,  J.,  said:  "I  think  It 
appears,  from  the  preamble  of  the  ninetieth  section  of  the  railways  clauses 
consolidation  act  (1845),  that  the  legislature  was  of  opinion  that  the  changed 
state  of  things,  arising  from  the  general  use  of  railways,  made  It  expedient 
to  impose  an  obligation  on  railway  companies,  acting  as  earners,  beyond  what 
is  imposed  on  a  carrier  at  common  law.  And,  if  this  be  borne  In  mind,  I 
think  the  construction  of  the  proviso  for  equality  Is  clear,  and  Is  that  the 
defendants  may,  subject  to  the  limitations  in  their  special  acts,  charge  what 
they  think  fit,  but  not  more  to  one  person  than  they,  during  the  same  time, 
charge  to  others  under  the  same  circumstances.  And  I  think  it  follows  from 
this  that,  if  the  defendaxits  do  charge  more  to  one  person  than  they,  during 
the  same  time,  charge  to  others,  the  charge  Is,  by  virtue  of  the  statute,  ex- 
tortionate. And  I  think  the  rights  and  remedies  of  a  person  made  to  pay  a 
charge  beyond  the  limit  of  equality  imposed  by  the  statute  on  railway  com- 
panies, acting  as  carriers,  on  their  line,  must  be  precisely  the  same  as  thos* 
of  a  person  made  to  pay  a  charge  beyond  the  limit  Imposed  by  the  comrson 


342  CARKIEHS    OF    GOODS.  [Ch.   7 

79.  LIEN — A  common  carrier  has  a  lien  for  his  proper 
charges  on  goods  received  from  one  'wla.o  had  au- 
thority to  deliver  them  for  transportation. 

To  enforce  the  payment  of  charges,  a  carrier  has  several  remedies. 
The  compensation  may  be  demanded  in  advance.^'*  If  this  is  not 
done,  the  carrier  cannot  maintain  an  action  for  his  charges  until  the 
transportation  is  completed  and  the  carrier's  contract  performed.^''" 

law  on  ordinary  carriers,  as  being  more  ttian  was  reasonable.  The  mode  of 
establishing  that  the  demand  is  extortionate  differs  in  the  two  cases.  Where 
it  is  sought  to  prove  that  the  charge  is  unreasonable,  and  therefore  extortion- 
ate, the  fact  that  another  was  charged  less  is  only  material  as  evidence,  for 
the  jury,  tending  to  prove  that  the  reasonable  charge  was  the  smaller  one. 
When  it  is  sought  to  show  that  the  charge  is  extortionate,  as  being  contrary 
to  the  statutable  obligation  to  charge  equally,  it  is  immaterial  whether  the 
charge  is  reasonable  or  not.  It  is  enough  to  show  that  the  company  carried 
for  some  other  person  or  class  of  persons  at  a  lower  charge,  during  the  period 
throughout  which  the  party  complaining  was  charged  more  under  the  like 
circumstances."  For  instances  of  undue  preference  under  the  English  act, 
see  Baxendale  v.  Railway  Co.,  11  C.  B.  (N.  S.)  787.  A  company  is  guilty  of 
undue  preference  when  they  favor  any  particular  person  in  a  delivery  of 
goods.  Parkinson  v.  Railway  Co.,  40  Law  J.  O.  P.  222,  L.  R.  6  C.  P.  554; 
Fishbourne  v.  Railway  Co.,  19  Sol.  J.  859.  Where  a  company  closed  their 
offices  at  a  certain  hour,  and  refused  to  receive  goods  thereafter  from  the 
public  generally,  but  continued  to  receive  goods  from  a  particular  individual, 
it  is  an  undue  preference.  Garton  v.  Railway  Co.,  30  Law  J.  Q.  B.  278,  1  Best 
&  S.  112;  Id.,  28  Law  J.  C.  P.  306,  6  C.  B.  (N.  S.)  639.  Also,  where  a  com- 
pany admitted  into  their  stations  their  own  vans  with  goods,  to  be  forwarded 
that  night,  at  a  later  hour  than  they  admitted  those  of  other  persons.  Palmer 
V.  Railway  Co.,  40  Law  J.  C.  P.  133,  L.  R.  6  C.  P.  194.  And  quaere  whether 
the  railway  company  would  have  been  justified  in  giving  such  preference  to 
themselves,  to  the  exclusion  of  other  carriers,  if  it  were  necessary,  in  order  to 
enable  the  general  public  to  have  the  benefit  of  sending  late  parcels.  Id. 
And  see  Palmer  v.  Railway  Co.,  35  Law  J.  C.  P.  289,  L.  R.  1  C.  P.  588. 

178  Camden  &  A.  R.  Co.  v.  Burke,  13  Wend.  611;  Wyld  v.  Pickford,  8  Mees. 
&  W.  442;  Randall  v.  Railroad  Co.,  108  N.  C.  G12,  13  S.  B.  137  (by  statute). 
But  see  Baltimore  &  O.  R.  Co.  v.  Adams  Exp.  Co.,  22  Fed.  404.  See,  also, 
ante,  p.  32G. 

17  7  Lane  v.  Penniman,  4  Mass.  91;  Brittan  v.  Barnaby,  21  How.  527;  Cer- 
tain Logs  of  Mahogany,  2  Sumn.  589,  Fed.  Cas.  No.  2,559;  Andrew  v.  Morr- 
bouse,  5  Taunt.  435;  Gibson  v.  Sturge,  10  Exch.  022:  Masliiter  v.  Buller,  1 
Camp.  84;  Clark  v.  Masters,  1  Bosw.  177;  Burns  v.  Marshal,  8  Q.  B.  785,  21 
Law  J.  Q.  B.  388. 


§79]  RIGHT   TO    COMPENSATION LIEN.  343 

After  such  performance  the  carrier  may  sue  either  the  consignor  or 

the  consignee.^^^     But  this  is  not  necessaiy,  since  the  goods  may  be 

held  as  security  for  the  charges  due;  that  is,  the  carrier  has  a  lien  to 

secure  his  compensadon. 

The  lien  of  the  carrier  for  charges  for  carriage  of  the  specific  ar- 

*-      ^      • ■ ~^ 

tides  IS  prior  to  the  rights  of  the  vendor  or  of  the  vendee,  or  the 

creditors  of  either,*  and  the  carrier  may  insist  upon  retaining  poasos- 
sion  until  those  charges  are  paid;  ^'®  and  an  otTicer  holding  process 
against  the  vendee  may  lawfully  advance  these  charges  to  the  carrier 
on  taking  possession  of  the  goods,  and,  having  so  advanced  tlioni,  is 
substituted  to  all  the  carrier's  rights  of  possession  as  security  there- 
for.^*" The  consignee  has  a  right  to  examine  the  goods  before  pay- 
ing  the  freight.^** 

On   WTiai  Goods. 

A  common  carrier's  lien  will  attach  to  any  kind  of  goods  that  are 
carried.  Thus,  there  is  a  lien  on  baggage.^**  A  carrier  of  passen- 
gers being  responsible,  as  a  common  carrier,  for  the  baggage  of  a  pas- 
senger, when  carried  on  the  same  conveyance  as  the  owner  theicof, 
and  the  transportation  of  the  baggage  and  the  risk  incurred  by  the 
carrier  being  a  part  of  the  service  for  which  the  fare  is  charged,^" 
the  carrier  has  a  lien  on  the  baggage  that  a  passenger  carries  with 
him.^**  But  this  lien  does  not  extend  to  the  clothing  or  other  per- 
sonal furnishings  or  conveniences  of  the  passenger,  in  his  immediate 
use  or  actual  possession.^®"     A  carrier  has  a  lien  for  charges  on 

17  8  See  ante,  p.  333. 

*  See  Cooley  v.  Railway  Co.,  53  Minn.  327,  55  N.  W.  141. 

179  Pennsylvania  R.  Co.  v.  American  Oil  Works,  12G  Pa.  St.  4S5,  17  AtL 
671;  Potts  V.  Railroad  Co.,  131  Mass.  455;  Rucker  v.  Donovan,  13  Kan.  251; 
Newliall  V.  Vargas,  15  Me.  314;  Oppenlieira  v.  Russell,  3  Bos.  &  P.  42;  .Morley 
V.  Hay,  3  Man.  &  R.  o9G;    Pennsylvania  Steel  Co.  v.  Railroad  Co.,  94  (Ja.  030, 

21  S.  ^^^TL 
isoUlflcW^v.  Donovan,  13  Kan.  190;   Potts  v.  Railroad  Co.,  131  Mass.  455. 

181  Brittan  v.  Baruaby,  21  How.  127. 

182  See  post,  p.  377. 

183  See  post,  p.  877. 

18*  Overt.  Liens,  §  142;  Thomp.  Carr.  524,  S  11;  Ang  Carr.  §  375;  2  Ror. 
R.  R.  1003,  §  11. 

isBRamsden  v.  Railroad  Co^  104  Mass.  117,  121;  Roberts  v.  Koebler,  30 
Fed.  94. 


344  CARRIERS    OF   GOODS.  [Ch.   7 

property  of  the  United  States,  as  well  as  on  the  property  of  an  indi- 
vidual.**' Although  the  rule  is  otherwise  in  England/*^  in  this 
country  a  carrier  has  no  lien  on  goods  delivered  for  transportation  by 
one  who  is  a  wrongdoer,  and  has  no  authority  to  deliver  the  goods 
to  the  carrier.*^*  This  is  placed  on  the  ground  that  a  common  car- 
rier is  bound  to  receive  and  carry  goods  only  when  offered  for  car- 
riage by  their  owner  or  his  authorized  agent,  and  then  only  upon 
payment  for  the  carriage  in  advance,  if  required.  If  a  common  car- 
rier obtains  possession  of  goods  wrongfully,  or  without  the  consent 
of  the  owner,  express  or  implied,  and,  on  demand,  refuses  to  de- 
liver them  to  the  owner,  such  owner  may  bring  replevin  for  the 
goods,  or  trover  for  their  value.  To  justify  a  lien  upon  goods  for 
their  freight,  the  relation  of  debtor  and  creditor  must  exist  between 
the  owner  and  the  carrier,  so  that  an  action  at  law  might  be  main- 
tained for  the  payment  of  the  debt  sought  to  be  enforced  by  the 
lien.**'  But  it  seems  to  be  the  rule  of  common  sense,  and  supported 
by  the  weight  of  authority,  that  when  the  owner  has,  by  his  own 
voluntary  acts,  clothed  the  sender  with  an  apparent  authority  to 
act  for  him,  then  the  carrier  has  a  right  to  look  to  the  owner  for 
his  reasonable  charges,  and  to  hold  a  lien  on  the  goods  for  the 
charges;  and,  in  judging  of  the  authority,  we  should  apply  the 
same  principles  of  evidence  that  are  applied  to  cases  of  agency 
generally.*'"     Thus,  when  the  freight  is  earned  in  good  faith,  under 

186  Union  Pac.  R.  Co.  v.  U.  S.,  2  Wyo.  170;  U.  S.  v.  Wilder,  3  Sumn.  308, 
Fed.  Cas.  No.  16,G94;  The  Davis,  10  Wall.  15.  Contra,  Dufolt  v.  Gorman,  1 
Minn.  301  (Gil.  234). 

187  Hutch.  Carr.  (2d  Ed.)  §  489;  Redm.  Ry.  Carr.  (2d  Ed.)  84;  Yorke  v. 
Grenaugh,  2  Ld.  Raym.  8GG.  SG7. 

188  Van  Buskirk  v.  Purinton,  2  Hall,  601;  Collman  v.  Collins,  Id.  609;  Fitch 
V.  Newberry,  1  Doug.  (Mich.)  1;  Robinson  v.  Baker,  5  Gush.  (Mass.)  137; 
Stevens  v.  Railroad  Co.,  8  Gray  (Mass.)  262;  Clark  v.  Railroad  Co.,  9  Gray 
(Mass.)  231;  Gilson  v.  Gwinn,  107  Mass.  12G;  Bassett  v.  Spofford,  45  N.  Y. 
887;  Marsh  v.  Railway  Co.,  3  McCrary,  236,  9  Fed.  873.  Common  can-ier, 
taking  property  fx-om  person  not  authorized  to  direct  its  shipment,  has  no  lien 
thereon  for  his  services,  and  no  right  to  retain  the  property.  Pingree  v.  De- 
troit, L.  &  N.  R.  Co.,  66  Mich.  143,  33  N.  W.  20a  One  who  carries  property 
for  the  convenience  and  at  the  request  of  a  bailee  thereof  has  no  lien  thereon 
for  services,  as  against  owner.    Gilson  v.  Gwinn,  107  Mass.  126. 

189  Fitch  V.  Newberry,  1  Doug.  (Mich.)  1. 

190  Vaughan  v.  Railroad  Co.,  13  R.  I.  578;   Schneider  v.  Evans,  25  Wis.  241, 


§   79]  RIGHT    TO   COMPENSATION LIKN.  346 

a  contract  of  transportation  made  with  an  agent  of  the  owner,  who, 
according  to  the  usages  of  business,  is  clothed  with  apparent  author- 
ity by  his  principal,  then  the  charges  for  freight  will  constitute  a 
valid  lien  upon  the  property,  although  the  agent,  by  an  accidental 
or  intentional  departure  from  his  instructions,  sends  the  goods  by 
a  route  not  intended,  or  to  the  wrong  place.^®^  The  rule  is  the 
same  whenever  goods  are  delivered  to  a  carrier  by  one  whom  the 
owner  of  the  goods  has  clothed  with  the  indicia  of  title;  as,  when 
an  owner  of  goods  delivers  them  to  a  carrier  to  be  transported  over 
his  route,  and  thence  over  the  route  of  a  succeeding  carrier,  or 
the  routes  of  several  successive  carriers,  he  makes  the  carrier  to 
whom  he  delivers  them  his  forwarding  agent,  for  whose  acts  in  the 
execution  of  that  agency  he  is  himself  responsible.  And  therefore, 
if  the  several  successive  carriers  carry  the  goods  according  to  the 
directions  which  are  given  by  the  forwarding  agents,  they  act  under 
the  authority  of  the  owner,  and  cannot,  in  any  sense,  be  considered 
as  wrongdoers,  although  they  are  carried  to  a  place  to  which  he 
did  not  intend  that  they  should  be  sent.  And  in  such  case  the  last 
carrier  will  be  entitled  to  a  lien  upon  the  goods,^®^  unless  there  was 
notice  of  the  directions  given  to  the  first  carrier.  If  there  was  no- 
tice, there  is  no  T-ight  to  compensation,  and  consequently  no  lien.^"^ 

265;  Mallory  v.  Burrett,  1  E.  D.  Smith  (N.  Y.)  234.  See,  also,  York  Co.  v.  Cen- 
tral R.  R.,  3  Wall.  107. 

191  Whitney   v.   Beckford,   105  Mass.  267. 

192  Briggs  v.  Railroad  Co.,  6  Allen  (Mass.)  246;  Stevens  v.  Railroad  Co..  8 
Gray  (Mass.)  262,  2(56;  Vaughan  v.  Railroad  Co.,  13  R.  I.  578;  Trice  v.  Rail- 
way Co.,  12  Colo.  402,  21  Pac.  188;  Patten  v.  Railway  Co.,  29  Fed.  590;  Bird 
v.  Georgia  R.  R.,  72  Ga.  655;  Snow  v.  Railway  Co.  (Ind.  Sup.;  Jan.  4,  1SS7) 
9  N.  E.  702.    But  see  Denver  &  R.  G.  R.  Co.  v.  Hill,  13  Colo.  35,  21  Pac.  914. 

183  Bird  v.  Georgia  R.  R..  72  Ga.  655;  Marsh  v.  Railway  Co.  (Jan.  It,  18S2)  'J 
Fed.  873;  Patten  v.  R<ailway  Co.,  29  Fed.  590.  Cf.  Moses  v.  Railroad  Co.. 
5  Wash.  St.  595,  32  Pac.  488,  1000.  A  carrier  which  received  goods  from  an- 
other carrier,  witn  the  knowledge  that  the  shipper  has  directed  shipment  by 
the  first  carrier  over  a  different  connecting  route,  has  no  carrier's  lien  upon 
the  goods,  either  for  Its  own  charges,  or  for  charges  advanced  to  the  first 
carrier;  and  proof  of  a  contract  between  the  two  carriers  to  systematically  dis- 
regard shipping  directions  obviates  the  necessity  of  specific  proof  of  different 
shipping  directions  in  the  case  in  suit.  Denver  &  R.  Q.  K.  Co.  v.  Hill,  13 
Colo.  35,  21  Pac.  914. 


346  CARRIERS    OF   GOODS.  [Ch.  7 

If  goods  belonging  to  different  owners  are  shipped  by  one  bill  of 
lading,  the  carrier  cannot  hold  the  goods  of  one  for  the  charges 
upon  the  goods  of  the  other.  Each  owner  is  entitled  to  his  goods 
on  the  payment  of  the  appropriate  charges.^'* 

For  W'^ai  Charges. 

A  carrier's  lien  covers  all  charges  rightfully  due  for  transportation 
of  the  goods  on  which  the  lien  exists.^ ^'^  It  covers  also  charges  for 
freight  which  the  carrier  has  advanced  to  preceding  carriers/®^  unless 
the  last  of  the  connecting  cai'riers  had  notice  from  the  bill  of  lading, 
or  otherwise,  that  the  other  carriers  had  been  prepaid.^*^  When 
justified  by  a  custom  or  usage  of  trade,  a  carrier  may  advance  other 
charges,  such  as  those  for  storage  and  forwarding.^ ^^  A  carrier's 
lien  on  baggage  is  held  to  cover  charges  for  carrying  the  owner  as 
a  passenger.^®®  The  lien  does  not,  however,  cover  charges  not  con- 
nected with  carrying  the  goods;  ^'"'  for  instance,  charges  for  storage,^"^ 

194  Hale  v.  Barrett,  26  lU.  195. 

190  Barker  v.  Havens,  17  Johns.  (N.  Y.)  234;  Clarkson  v.  Edes,  4  Cow. 
(N.  Y.)  470;  Langworthy  v.  Railroad  Co.,  2  E.  D.  Smith  (N.  Y.)  195;  Western 
Transp.  Co.  v.  Hoyt,  69  N.  Y.  230;  Bowman  v.  Hilton.  11  Ohio,  303;  Wilson 
V.  Railway,  56  Me.  60;  Lickbarrow  v.  ilason,  2  Term  R.  63.  And  see 
Bacharach  v.  Freight  Line,  133  Pa.  St.  414,  19  Atl.  409. 

196  Potts  V.  New  York  &  N.  E.  R.  Co..  181  Mass.  455;  Briggs  v.  Railroad 
Co.,  6  Allen  (Mass.)  246;  Crossan  v.  Railroad  CO.,  149  Mass.  196,  21  N.  E. 
367;  Galena  &  C.  U.  R.  Co.  v.  Kae.  16.  ill.  488;  Union  Exp.  Co.  v.  Shoop. 
85  Pa.  St.  325;  Schneider  v.  Evans,  25  Wis.  241;  White  v.  Vann,  6  Humph. 
(Tenn.)  70;  Wells  v.  Thomas,  27  Mo.  17;  (Georgia  Railroad  &  Banking  Co.  v. 
Murrah,  85  Ga.  343,  11  S.  E.  779;  Bird  v.  Railroad.  72  Ga.  655;  Knight  v. 
Railroad  Co.,  13  R.  I.  572;  Wolf  v.  Hough,  22  Kan.  659;  Travis  v.  Thompson, 
37  Barb.  (N.  Y.)  236. 

18  7  Marsh  v.  Railway  Co.,  3  McCrary,  236,  9  Fed.  873. 

198  Bissell  V.  Price,  16  111.  408;  White  v.  Vann,  6  Humph.  (Tenn.)  70.  But 
see  The  Virginia  v.  Kraft,  25  Mo.  76. 

199  Roberts  V.  Koehler,  30  Fed.  94. 

200  The  Virginia  v.  Kraft,  25  Mo.  76;  Lambert  v.  Robinson,  1  Esp.  119. 
The  lien  does  not  cover  damages  for  breach  of  a  collateral  contract.  Birley 
V.  Gladstone,  3  Maule  &  S.  205;  Gray  v.  Carr,  L.  R.  6  Q.  B.  522;  Phillips  v. 
Rodie,  15  East,  547.  Or  for  repairs  on  an  engine.  Kimmar  v.  Railway  Co., 
19  Law  T.  (N.  S.)  387. 

201  The  Virginia  v.  Kraft,  25  Mo.  76;   Lambert  v.  Robinson,  1  Esp.  119. 


§79]  RIGHT    TO    COMPENSATION LIEN.  3i7 

for  demurrage,-"^  or  port  charges.^"'  Tlie  carrier's  lien  for  cli!ir^(;8 
is  a  special,  not  a  general,  lien ;  that  is,  the  carrier  cannot  hold  f^^uucL» 
for  a  general  balance  of  account.-"''  A  right  to  a  general  lien  may  l>e 
given  by  express  contract,  or  by  established  iisage.^""^  Still,  such  a 
lien  would  not  be  effectual  against  the  consignor's  right  to  stop  the 
goods  in  transitu.^"*  But  the  whole  lien  attaches  to  each  and  every 
part  of  the  goods  subject  to  it.  If  not  discharged  or  waived,  it  re 
mains  attached  to  whatever  part  of  the  property  may  remain  within 
the  possession  of  the  carrier.^ °^ 

Waiver  of  Lien. 

A  delivery  of  part  of  the  property  does  not  necessarily  discharge 
the  lien,  either  in  whole  or  pro  tanto.  It  releases  the  part  deliv- 
ered from  the  lien,  but  does  not  discharge  the  part  remaining  from 
the  burden  of  the  whole  lien,  unless  it  was  the  intention  of  the  par- 

202  East  Tennessee,  V.  &  G.  R.  Co.  v.  Hunt,  15  Lea  (Tenn.)  261;  Crommelin 
v.  Railroad  Co.,  *43  N.  Y.  90;  Log,  etc.,  R.  Co.  v.  Jenkins,  9  Am.  &  Eng. 
Ry.  Cas.  113;  Falkenburg  v.  Clark,  11  R.  I.  278.  The  admiralty  law,  how- 
ever, gives  such  a  lien.  Moody  v.  Five  Hundred  Thousand  Laths,  2  Fed.  OUT; 
Donaldson  v.  McDowell,  1  Holmes,  290,  Fed.  Cas.  No.  3,985;  The  Hyperion's 
Cargo,  2  Lowell,  93,  Fed.  Cas.  No.  6,987.     See  ante,  p.  334. 

203  Faith  V.  East  India  Co.,  4  Barn.  &  Aid.  630.  A  railway  carrier  has  been 
held  to  have  no  lien  for  callage  at  the  terminal  station.  Richardson  v.  Rich, 
104  Mass.  156.  Where  carrier  by  water,  after  landing  goods  at  wharf  in  city 
to  which  they  are  consigned,  voluntarily  assumes  delivery  of  them  to  consignee 
at  his  place  of  business,  no  lien  for  cartage  arises.     Id. 

20  4  Leonard's  Ex'rs  v.  Winslow,  2  Grant.  Cas.  (Fa.)  139;  Bacharacb  v. 
Freight  Line,  133  Pa.  St.  414,  19  Atl.  409;  Pennsylvania  R.  Co.  v.  American 
Oil  Works,  126  Pa.  St.  485,  17  Atl.  671;  Baitlett  v.  Carnley,  8  Deur.  (N.  Y.) 
194;  Buskirk  v.  Purinton,  2  Hall,  601;  CoUman  v.  Collins,  Id.  609;  Rushfurth 
V.  Hadfield,  6  East,  519;  Butler  v.  Wooleott,  2  Bos.  &  P.  (N.  R.)  64;  Richard- 
son V.  Goss,  3  Bos.  &  P.  119. 

20B  Kirkman  v.  Shawcross,  6  Term  R.  14;  Wright  v.  Snell,  5  Barn.  &  .\1(1. 
350. 

206  Potts  V.  New  York  &  N.  E.  R.  Co.,  131  Mass.  455;  Farrell  v.  Railroad 
Co.,  102  N.  C.  390,  9  S.  E.  302;  Oppenheim  v.  Russell,  3  Bos.  &  1'.  42; 
Jackson  v.  Nichol,  7  Scott,  577,  5  Bing.  N.  C.  508,  518.  Cf.  Pennsylvania 
Steel  Co.  V.  Georgia  Railroad  &  Banking  Co.,  94  Ga.  636,  21  S.  E.  577. 

207  Ware  River  R.  Co.  v.  Vibbard,  114  Mass.  447;  Lane  v.  Railroad  Co.,  14 
Gray  (Mass.)  143;  New  Haven  &  Northampton  Co.  v.  Campbell,  128  Mass. 
104;   Potts  V.  Railroad  Co.,  131  Mass.  455. 


348  CARRIERS    OP    GOODS.  [Ch.  7 

ties  to  do  80.'°'  And  this  is  ordinarily  a  question  of  fact,  for  the 
jury.'"'  An  unconditional  delivery  of  all  the  goods  is  a  waiver  of 
the  lien.'^°  A  delivery  may  be  made  under  an  agreement  that  the  lien 
shall  not  be  waived,  and  this  agreement  will  be  valid,  as  against  the 
consignee.' ^^  A  refusal  to  deliver  the  goods  for  some  other  reason 
than  that  the  charges  are  not  paid  is  a  waiver  of  the  carrier's  lien.* 
Thus,  if  a  person  have  a  lien  on  goods,  for  the  price  of  hauling  them 
to  a  place  of  deposit,  his  subsequently  claiming  them  as  his  own,  and 
refusing,  on  that  ground,  to  deliver  them  to  the  owner,  is  a  waiver 
of  the  lien.'^'  If  a  delivery  of  the  goods  is  obtained  by  fraud,  there 
is  no  waiver  of  the  lien.'^^  A  waiver  may  be  implied  from  the  terms 
of  payment,  as  when  the  payment  of  the  transportation  charges  is  to 
be  at  a  time  after  the  delivery,'^*  or  from  provisions  in  the  bill  of 
lading  or  charter  party  inconsistent  with  the  existence  of  a  lien.'^* 

208  Lane  v.  Railroad  Co.,  14  Gray  (Mass.)  143;  New  Haven  &  Northampton 
Co.  V.  Campbell,  128  Mass.  104;  New  York  Cent.  &  H.  R.  R.  Co.  v.  Davis 
(Sup.)  34  N.  y.  Supp.  206;  Boggs  v.  Martin,  13  B.  Mon.  (Ky.)  239;  Pennsyl- 
vania Steel  Co.  v.  Georgia  Railroad  &  Banking  Co.,  94  Ga.  636,  21  S.  E.  577; 
Sodergren  v.  Flight,  cited  6  East,  622. 

20  9  New  Haven  &  Northampton  Co.  v.  Campbell,  128  Mass.  104. 

210  Bigelow  V.  Heaton,  4  Denio  (N.  Y.)  496,  6  Hill  (N.  Y.)  43;  Geneva,  I.  & 
S.  R.  Co.  V.  Sage,  35  Hun,  95;  Sears  v.  Wills,  4  Allen,  212;  Bailey  v.  Quint, 
22  Vt.  474;   Reineman  v.  Railroad  Co.,  51  Iowa,  338,  1  N.  W.  619. 

211  The  Eddy,  5  WaU.  481;  Bags  of  Linseed,  1  Black  (U.  S.)  108.  An  un- 
communicated  intention  of  the  carrier  that  the  lien  shall  not  be  waived  is 
ineffectual.     The  Tan  Bark  Case,  1  Brown,  Adm.  151,  Fed.  Cas.  No.  13.742. 

*  Carrier  waives  his  right  to  detain  goods  for  freight,  when  he  puts  his  re- 
fusal to  deliver  upon  the  ground  that  they  are  not  in  his  possession  at  the 
place  where  the  demand  is  duly  made.  Adams  Exp.  Co.  v.  Harris,  120  Ind. 
73,  21  N.  E.  340. 

212  Picquet  v.  McKay,  2  Blackf.  (Ind.)  465.  And  see  Adams  Exp.  Co.  v. 
Han-is.  120  Ind.  73,  21  N.  E.  340. 

213  Bigelow  v.  Heaton,  6  HUl  (N.  Y.)  43;  Hays  v.  Riddle,  1  Sandf.  (N.  Y.) 
248;  Ash  V.  Putnam,  1  Hill  (N.  Y.)  302;  One  Hundred  and  Fifty-One  Tons  of 
Coal,  4  Blatchf.  368,  Fed.  Cas.  No.  10,520;  Bristol  v.  Wilsmore,  1  Barn.  &  C. 
514. 

214  The  Bird  of  Paradise,  5  Wall.  545;  Chandler  v.  Belden,  18  Johns.  (N.  Y.) 
157;  Alsager  v.  St.  Katherine  Dock  Co.,  14  Mees.  &  W.  794.  But  for  cases 
where  the  facts  have  been  held  not  to  show  a  waiver  of  the  lien,  see  The 


*^*  Raymond  t.  Tyson,  17  How.  53. 


§    79]  RIGHT   TO    COMPENSATION LIEN.  349 

Assignment  of  Lien. 

A  carrier's  lien  is  a  peraopal  privilege,  and^  cannot _beji88iijrieiL*** 
One  coming  into  possession  of  the  goods  wrongfully  cannot  claim  the 
benefit  of  the  lien,  against  the  owner,  though  he  has  paid  the  charges 
on  the  goods.^^^  But  the  carrier  may  hand  the  goods  over  to  a  ware- 
houseman, to  be  stored  until  the  charges  are  paid,  without  losing  Ids 
lien.  In  such  case  the  warehouseman  holds  the  goods  as  agent  of 
the  carrier. '^^^ 

Discharge  and  Set-Off. 

On  the  analogy  of  other  liens  on  personal  property,  a  carrier's  lieu 
is  discharged  by  a  tender  of  the  amount  due.^^"  The  consignee  being 
permitted  to  set  off  against  the  carrier's  claim  for  freight  any  dam- 
ages he  has  suffered,^^"  it  follows  that  the  carrier  cannot  hold  the 
goods,  under  his  lien,  where  the  damage  is  equal  to  or  greater  than 
the  amount  of  the  charges.  This  is  for  the  reason  that  the  carrier's 
lien  is  coextensive  with  and  dependent  upon  his  right  to  recover  com 
pensation.''*^ 

Volunteer,  1  Sumn.  551,  Fed.  Cas.  No.  16,991;  Certain  Logs  of  Mahogany,  2 
Sumn.  589,  Fed.  Cas.  No.  2,559;  The  Kimball,  3  Wall.  37;  Pinney  v.  Wells. 
10  Conn.  104;  Howard  v.  Macoudray,  7  Gray  (Mass.)  516;  Clarkson  v.  Edes. 
4  Cow.  (N.  Y.)  470;   Tate  v.  Meek,  8  Taunt.  2«0;   Tambaco  v.  Simpson,  19  C. 

B.  (N.  S.)  453;  Brown  v.  Tanner,  3  Ch.  App.  597;  Crawshay  v.  Horn  fray,  4 
Barn.  &  Aid.  50;  Neish  v.  Graham,  8  El.  &  Bl.  505.  Lien  for  freight  and 
charges  is  lost  if  goods  are  delivered  to  consignee,  upon  his  note  therefor,  and 
is  not  revived  if  carrier  or  his  agent  afterwards  accidentally  obtains  posses- 
sion of  them.     Hale  v.  Barrett,  26  111.  195. 

216  Hutch.  Carr.  (2d  Ed.)  §  493;  Ames  v.  Palmer,  42  Me.  107.  Contra. 
Everett  v.  Coffin,  6  Wend.  603. 

217  Lempriere  v.  Pasley,  2  Term  R.  485;  Dewell  v.  Moxon,  1  Taunt.  391. 
And  see  Ames  v.  Palmer,  42  Me.  197;   Everett  v.  iSaltus,  15  Wend.  474. 

218  Western  Transportation  Co.  v.  Barber,  56  N.  Y.  544;  Compton  v.  Shaw, 
1  Hun,  441;  Alden  v.  Carver,  13  Iowa,  253;  Brittan  v.  Bai-naby,  21  How.  527: 
The  Eddy,  5  Wall.  481, 

219  Hutch.  Carr.  (2d  Ed.)  §  492;   Scott  v.  Railroad  Co.,  57  Mo.  App.  345. 

220  Gleadell  v,  Thomson,  56  N.  Y.  194;  Bartram  v.  McKee,  1  Watts  (Pa.)  39: 
Leech  v.  Baldwin,  5  Watts  (Pa.)  446;  Edwards  v.  Todd,  1  Scam.  (111.)  462; 
Snow  V.  Carruth,  1  Spr.  324,  Fed.  Cas.  No.  13.144. 

221  Dyer  v.  Railroad  Co.,  42  Vt.  441;  Humphreys  v.  Reed,  6  Whart.  (Pa.) 
435;   Ewart  v.  Kerr,  Rice  (S.  C.)  203;    Miami  Powder  Co.  v.  Port  Royal  &  W. 

C.  Ry.  Co.,  38  S.  C.  78,  16  S.  E.  339. 


350  CARRIERS    OF    GOODS.  [Ch.   7 

Scde  under  Lien. 

At  common  law  a  carrier  who  has  a  lien  on  goods  for  the  freight 
earned  in  transporting  them,  or  for  sums  paid  for  freight  earned  by 
preceding  carriers  thereof,  has  no  right  to  sell  the  goods  to  enforce 
the  lien.^^*  If  a  carrier  who  has  a  lien  wrongfully  sells  the  goods, 
he  is  liable  to  an  action  for  conversion;  ^^^  and  the  measure  of  dam- 
ages is  the  market  value  of  the  goods,  deducting  the  amount  of  the 
lien."* 

A  sale  can  be  made  only  by  a  proceeding  to  foreclose  the  lien,  and 
under  a  decree  of  sale  so  obtained. ^^"^  But  now,  by  statutes  in  neariy 
all  the  states,  a  carrier  is  given  power  to  sell  goods  held  under  the 
lien  for  charges,  after  holding  them  a  certain  length  of  time.^^° 

222  Briggs  V.  Railroad  Co.,  6  Allen  (Mass.)  246;  Lecky  v.  McDermott,  S 
Serg.  &  R.  (Pa.)  500;  Indianapolis  &  St.  L.  R.  CJo,  v.  Herndon,  81  111.  143; 
Hunt  V.  Haskell,  24  Me.  339;  Sullivan  v.  Park.  33  Me.  438;  Rankin  v.  Packet 
Co.,  9  Heisk.  (Tenn.)  5&4;  Grade  v.  Palmer,  8  Wheat.  605;  Lickbarrow  v. 
Mason,  6  East,  22. 

223  Id. 

224  Briggs  V.  Railroad  Co.,  6  Allen  (Mass.)  246. 

225  Hunt  V.  Haskell,  24  Me.  339;  Rankin  v.  Packet  Co.,  9  Heisk.  (Tenn.)  564; 
Fox  V.  McGregor,  11  Barb.  41. 

226Alabama,  Code  1876,  §  2140.  Arizona,  Comp.  Laws  1877,  c.  86,  §  4.  Cali- 
fornia, Civ.  Code,  §§  2144,  2191.  Colorado,  Gen.  St.  1883.  §§  2119-2125.  Con- 
necticut, Gen.  St.  1875,  p.  365.  Dakota,  Code  1883,  §§  1228-1228b.  Delaware, 
Rev.  Code  1874,  p.  667.  Georgia,  Code  1882,  §  2084a.  Illinois,  Starr  &  C. 
Ann.  St.,  c.  141.  §  1.  Indiana,  Rev.  St.  1881.  §  2900  (Rev.  St.  1894,  §  3294). 
Iowa,  Rev.  Code  1886,  §§  2177,  2178.  Kansas,  Gen.  St.  1889,  art.  3665.  Lou- 
isiana, Rev.  Civ.  Code  1882,  arts.  3224,  8226;  Civ.  Code  1884,  §  2873.  Maine, 
Rev.  St.  1883,  c.  62.  §§  8-10.  Maryland,  Rev.  Code  1878,  art.  67,  c.  20,  §§  1-3. 
Massachusetts,  Pub.  St.  1882,  c.  96,  §  6.  Michigan,  3  How.  Ann.  St.  §  3327. 
Minnesota.  Gen.  St.  1878,  p.  875,  §§  16,  17  (Gen.  St.  1894.  §  6248).  Missouri,  Rev. 
St.  1879,  §§  6277,  6278.  Mississippi,  Rev.  Code  1880,  §  1055.  Nebraska,  Comp. 
St  1887,  p.  733,  c.  92,  §  3.  Nevada,  Gen.  St.  1885.  §§  4964-^969.  N.ew  Jersey, 
Revision  1709-1887,  p.  593.  New  Mexico.  Comp.  Laws  1884,  §  2682.  New 
York.  Rev.  St.  (8th  Ed.)  p.  2520.  North  Carolina.  Code  1883,  §  1985.  Ohio,  Rev. 
St.  1892,  §  3223.  Oregon,  Hill's  Ann.  Laws  1887,  §§  3684,  3685.  Pennsylvania. 
Brightly,  Purd.  Dig.  p.  266,  §  7.  Rhode  Island.  Pub.  St.  c,  139,  §  5.  South  Car- 
olina. Rev.  St,  1872,  p.  398,  c.  76.  Tennessee,  Code  1884,  §  2790.  Texas,  Sayles' 
Civ.  St.  art  285.  Utah.  Comp.  I^ws  1888,  §§  2958-2960.  Vermont.  Rev.  Laws 
1880,  c.  184,  §  4063-4067.  Washington,  Code  1881-83.  §  1982.  Wisconsin,  Rev. 
St  1878,  §  1638.    Wyoming,  Rev.  St  1887.  §§  1471-1474. 


j-t,     vjriciuic    V.    iTixiLiixiL,    o     yv  ueau    m.ru,     j 


§§   81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE A3    INSURERS.  351 

SAME— LIABILITY  FOE  LOSS  OR  DAMAGE. 

80.  Common  carriers  are  liable  for  loss  or  dam.age  to  the 

goods  shipped,  either — 

(a)  As  insurers  (p.  351),  or 

(b)  As  ordinary  bailees  for  hire  (p.  401). 

SAME— LIABILITY  FOR  LOSS  OR  DAMAGE— AS  INSURERS. 

81.  Common  carriers  are  insurers  of  goods  carried  in  that 

capacity  against  all  losses  or  damage,  except  those 
caused  by: 
EXCEPTIONS— (a)  The  act  of  God  (p.  356). 

(b)  The  public  enem.y  (p.  364). 

(c)  The  act  of  the  shipper  (p.  365). 

(d)  Public  authority  (p.  367). 

(e)  The  inherent  nature  of  the  goods  (p.  368). 

82.  Even    where    the   loss   is   caused   by   a   peril   against 

which  common  carriers  are  not  insurers,  they  are 
nevertheless  liable,  if  they  fail  to  use  reasonable 
care  and  diligence  to  avoid  all  perils,  including  the 
excepted  perils.^ 

In  the  absence  of  contract  to  the  contrary  with  the  customer,  a 
common  carrier  is,  by  common  law,  an  insurer  of  the  goods  in- 
trusted to  him;  his  warranty  being  safely  and  securely  to  carry  and 
deliver.^^*  In  other  words,  he  impliedly  undertakes  to  deliver  the 
goods  in  the  condition  in  which  he  received  them.^^"      If  goods  de- 

227  See  post,  p.  401,  "Liability  as  Ordinary  Bailees." 

«2  8  Coggs  V.  Bernard,  2  Ld.  Rayin.  909;  Forward  v.  Tittard,  1  Term  U.  'J7; 
Fish  T.  Chapman,  2  Ga.  349;  Williams  v.  Gram,  1  Conn.  487;  Merritt  v. 
Earle,  29  N.  Y.  115;  Parsons  v.  Hardy.  14  Wend.  215;  Colt  v.  McMechen,  (i 
Johns.  IGO;  Wood  v.  Crocker,  18  Wis.  345;  Welsh  v.  Railroad  Co.,  10  Ohio 
St.  65;  Parker  v.  Flagg,  26  Me.  181;  Blumenthal  v.  Bralnerd.  38  Vt.  4f!2: 
Hooper  v.  W^ells,  27  Cal.  11;  Adams  Exp.  Co.  v.  Darnell,  31  Ind.  20;  Gulf, 
C.  &  S.  F.  Ry.  Co.  V.  Levi;  76  Tex.  337.  13  S.  VV.  191;  Daggett  v.  Show,  3 
Mo.  264. 

2  29  Per  Pollock,  C.  B.,  in  Higginbotham  v.  Railroad  Co.,  10  Wkly.  Rep.  o58. 


352  CARRIERS   OF   GOODS.  [Ch.    7 

livered  to  a  carrier  do  not  arrive  at  their  destination,  or,  when 
delivered,  they  are  not  the  same,  in  bulk  or  condition,  as  when  re- 
ceived by  the  carrier,  this  is  a  prima  facie  breach  of  his  warranty, 
for  which  he  is  liable.  In  an  action  for  loss  of  goods,  it  is  sufiQ- 
cient  evidence  of  nondelivery  to  show  that  the  goods  never  reached 
the  consignee.^^"  So  evidence  that  the  weight  or  amount  of  goods 
delivered  to  the  consignee  is  less  than  the  weight  or  amount  of 
goods  delivered  to  the  carrier  is  sufficient,  prima  facie,  to  charge 
the  latter  for  the  deficiency,  or  to  call  on  him  to  show  that  it  did  not 
arise  from  his  negligence.^'^  Proof  tliat  the  goods  were  in  a  proper 
condition  when  received  by  the  company,  and  were  damaged  when 
delivered,  is  sufficient  to  charge  the  company.^^^ 

As  stated  in  the  black-letter  text,  there  are  certain  perils  or  risks 
against  which  a  carrier  does  not  insure.  These  excepted  perils  are 
the  act  of  God,  the  public  enemy,  the  act  of  the  shipper,  public  au- 
thority, and  the  inherent  nature  of  the  goods.  If  it  can  be  showm 
that  the  loss  or  injury  arose  from  one  of  these  excepted  perils,  the 
carrier  is  prima  facie  not  liable.  Nothing  but  one  of  these  excepted 
perils,  however,  will  excuse  the  carrier  when  goods  are  lost  or  in- 
jured.^^^  So  that  at  common  law  the  carrier  would  be  liable, 
though  the  goods  are  stolen,  even  by  force,  destroyed  by  accidental 
fire,  or  injured  through  the  wrongful  acts  of  third  parties.^^*  The 
above-mentioned  exceptions,  however,  limit  the  liability,  and  not 

230  Gilbart  v.  Dale,  5  Adol.  &  B.  543;  Griffiths  v.  Lea,  1  Car.  &  P.  110. 

281  Hawkes  v.  Smith,  Car.  &  M.  72. 

232  Higginbotham  v.  Railroad  Co.,  10  Wkly.  Rep.  358.  Where  the  freight 
injured  is  live  stock  or  perishable  property,  proof  of  the  injury  is  insufficient. 
"The  shipper  must  also  show  some  'injurious  accident,'  or  some  injury  to  the 
thing  shipped,  which  could  not  have  been  the  result  of  its  inherent  nature  or 
defects,  or  which  stimulated  or  accelerated  the  injury  arising  out  of  such  in- 
herent nature  or  defects."  Hutch.  Carr.  §  7GSa;  Pennsylvania  R,  Co.  v.  Rairor- 
don,  119  Pa.  St.  577,  13  Atl.  324;  Hussey  v.  The  Saragossa,  3  Woods,  380, 
Fed.  Cas.  No.  6,949.  But  see  The  America,  8  Ben.  491,  Fed.  Cas.  No.  283; 
Lindsley  v.  Railway  Co.,  80  Minn.  539,  33  N.  W.  7;  Louisville  &  N.  R.  Co.  v. 
Wynn,  88  Tenn.  320,  14  S.  W.  311;  Columbus  &  W.  Ry.  Co.  v.  Kennedy,  78 
Ga.  646,  3  S.  W.  267. 

2  33  Davis  V.  Wabash,  St.  L.  &  P.  R.  Co.,  89  Mo.  340.  1  S.  W.  327. 

284  Forward  v.  Pittard,  1  Term  R.  27;  Hyde  v.  Navigation  Co.,  5  Term  R. 
389;  Gosling  v.  Higgins,  1  Camp.  451.  It  has  sometimes  been  thought  that 
•'inevitable  accident"  was  synonymous  with  "act  of  God,"  and  excused  the 


§§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE A8    INSURERS.  353 

the  duty  of  the  carrier.^*'"  It  is  his  duty  to  do  his  utiiuist,  as 
against  all  perils, including  the  excepted  perils.to  protect  the  go(;ds 
from  loss  or  damai^c  'A,  notwithstanding  such  care  and  diligence, 
damage  does  occur,  he  is  relieved  from  liability;  but  if  his  negli- 
gignce  has  brought  about  the  peril  the  damage  is  attributable  to  hia 
15reach  of  duty,  and  the  exception  does  not  aid  him.''"  It  is  the 
duty  of  carriers  to  exercise  ordinary  care  to  carry  safely,  even  \n 
cases  where  they  are  not  insurers.'"^  In  cases  where  they  are  in- 
surers,  the  question  of  negligence  or  diligence  is  w^holly  immaterial. 

Reason  of  Rule. 

"The  law  charges  this  person  [the  common  carrier]  thus  intrusted 
to  carry  goods  against  all  acts  but  acts  of  God  and  the  enemies  of 
the  king.  For,  though  the  force  be  ever  so  great,  as  if  an  irresist- 
ible multitude  of  people  should  rob  him,  nevertheless  he  is  charge- 
able. And  this  is  a  politic  establishment,  contrived  by  the  policy 
of  the  law  for  the  safety  oi  all  persons,  the  necessity  of  whose  af- 
fairs oblige  them  to  trust  these  sorts  of  persons,  that  they  may  be 
safe  in  their  ways  of  dealing;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  that  had  any  dealings  with  them, 
or  combining  with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine 
manner  as  would  not  be  possible  to  be  discovered.  And  this  is  the 
reason  the  law  is  founded  upon  on  that  point."  * 

"When  goods  are  delivered  to  a  carrier,  they  are  usually  no  longer 
under  the  eye  of  the  owner.  He  seldom  follows  or  sends  any  serv- 
ant with  them  to  the  place  of  their  destination.  If  they  should  be 
lost  or  injured  by  the  grossest  negligence  of  the  carrier  or  his  serv- 
ants, or  stolen  by  them,  or  by  thieves  in  collusion  with  them,  the 
owner  would  be  unable  to  prove  either  of  these  causes  of  loss.  His 
witnesses  must  be  the  carrier's  servants,  and  they,  knowing  that 
they  could  not  be  contradicted,  would  excuse  their  masters  and 
themselves.      To  give  due  security  to  property,  the  law  has  added 

carrier.  Hays  v.  Kennedy,  41  Pa.  St.  378;  Fish  v.  Chapman,  2  Ga.  341).  Cf. 
Central  Line  v.  Lowe,  50  Ga.  509;  McClenaghan  v.  Brock,  6  lUch.  Law  (B.  C.) 
17;   Harrington  v.  Lyles,  2  Nott  &  McC.  (S.  C.)  88. 

28 B  Redm.  Ry.  Carr.  p.  4. 

286  Gill  V.  Railroad  Co.,  42  Law  J.  Q.  B.  89. 

««T  Marshall  v.  Railroad  Co.,  11  C.  B.  665,  note. 

*  Holt,  C.  J.,  In  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  9ia 

LAWBAILM. — 23 


354  CARRIERS    OF    GOODS.  [Cli.  7 

to  that  responsibility  of  a  carrier  whicli  imiuediatelj  arises  out  of 
his  contract  to  carrj-  for  a  reward — namely,  that  of  taking  all  rea- 
sonable care  of  it — the  responsibility  of  an  insurer.  From  his  lia- 
bility as  an  insurer,  the  carrier  is  only  to  be  relieved  by  two  things, 
both  so  well  known  to  all  the  country,  when  they  happen,  that  no 
person  would  be  so  rash  as  to  attempt  to  prove  that  they  had  hap- 
pened when  they  had  not,  namely,  the  act  of  God  and  the  king's 
enemies."  f 

"The  case  of  a  carrier  stands  upon  peculiar  grounds.  He  is  held 
responsible  as  an  insurer  of  the  goods  to  prevent  combinations,  chi- 
canery and  fraud."  J 

Burden  of  Proof. 

In  an  action  for  damages  against  a  common  carrier  for  goods  lost 
or  injured  while  in  the  latter's  possession,  proof  of  the  loss  or  in- 
jury makes  out  a  prima  facie  case  of  liability.  The  burden  of  proof 
is  upon  the  carrier  to  show  that  the  loss  or  injury  was  caused  by 
one  of  the  excepted  perils  against  which  he  is  not  an  insurer.^^* 
Upon  proof  that  the  loss  was  caused  by  such  excepted  peril,  as  by 
act  of  God  or  the  public  enemy,  the  carrier  is  prima  facie  not  liable; 
and,  to  charge  him  with  the  loss,  the  burden  of  proof  is  upon  the 
plaintiff  to  show  that  the  carrier  was  negligent^*®      But  the  au- 

t  Riley  v.  Home,  5  Bing.  217. 

t  Spencer,  J.,  in  Roberts  v.  Turner,'  12  Johns.  232,  233.  See,  also,  Thomas 
V.  Railroad  Co.,  10  Mete.  (INIass.)  472,  476;  Hollister  v,  Nowlen,  10  Wend.  234, 
240;  Elkins  v.  Railroad  Co.,  23  N.  H.  275,  285;  Moss  v.  Railroad  Co.,  24  N. 
EL  71;   Forward  v.  Pittard,  1  Term  R.  27. 

238  Davis  V.  Railroad  Co.,  89  Mo.  340,  1  S.  W.  327;  Wallingford  v.  Railroad 
Co.,  26  S.  C.  258,  2  S.  E.  19;  Slater  v.  Railway  Co.,  29  S.  C.  96,  6  S.  E.  936. 
The  plaintiff's  own  showing  may  exempt  the  carrier  from  liability.  Davis  v. 
Railroad  Co.,  supra. 

239  Witting  V.  Railroad  Co.,  101  Mo.  631,  14  S.  W.  743;  Davis  v.  Railroad 
Co.,  89  Mo.  340,  1  S.  W.  327;  Read  v.  Railroad  Co.,  60  Mo.  199  (cf.  Hill  v. 
Sturgeon,  28  Mo.  323);  Steers  v.  Steamship  Co.,  57  N.  Y.  1;  Lamb"  v.  Railroad 
Co.,  46  N.  Y.  271;  Cochran  v.  Dinsmore,  49  N.  Y.  249;  Patterson  v.  Clyde,  67 
Pa.  St.  500;  Col  ton  v.  Railroad  Co.,  67  Pa.  St.  211;  P'arnham  v.  Railroad  Co., 
55  Pa.  St.  53;  Goldey  v.  liailroad  Co.,  30  Pa.  St  242  (cf.  Pennsylvania  R.  Co. 
V.  Miller,  87  Pa.  St.  395;  Hays  v.  Kennedy,  41  Pa.  St.  378;  Whitesides  v. 
RusseU,  8  Watts  &  S.  44);  Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Corcoran,  40  Ark. 
875;  Little  Rock,  M.  R.  &  T.  Ry.  Co.  v.  Harper,  44  Ark.  208;  Kansas  Pac. 
Ry.  Co.  V.  Reynolds,  8  Kan.  623;    Kallman  v.  Express  Co.,  3  Kan,  205;   Kel 


§§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE A3    INSURERS.  355 

thorities  are  not  uniform.      Many  courts  hold  that,  to  excuse  him- 
self, the  carrier  must  show,  not  only  that  the  loss  was  caused  by 
an  excepted  peril,  but  that  he  exercised  reasonable  skill  and  dili- 
gence, or,  in  other  words,  was  guilty  of  no  negligence.^** 
Retention  of  Custody  by  Shipper. 

Where  the  goods  are  not  put  into  iho  pxclnsivt    ,  jii- 

trol  of  the  carrier,  but,  on  the  (•oiitrary,  tin-  sliipiK  i,  li\  iiiiii.sfir  or 
servant,  accompanies  them  and  leUiiiis  pussi  ssidi^^  liif  extraordi- 
nary liability  of  a  common  carrier  does  noi  an;h;li.'**^  ''In  such 
cases  the  owner,  so  far  from  having  made  delivery  fQ  thp--cafMer. 
has  purposely  withheld  it.  He  has  not  trusted  the  carrier,  and 
where  there  has  been  no  trust  reposed  there  can  be  no  liability,  for 
trust  is  the  very  basis  of  the  liability."  ^*^  Thus,  where  a  steerage 
passenger  in  a  ship  retained  exclusive  possession  and  custody  of 
his  trunk,  and  trusted  to  his  own  care  and  vigilance  to  protect  it 

ham  V.  The  Kensington,  24  La.  Ann.  100;  Smith  v.  Railroad  Co..  G4  N.  C. 
235;  Hubbard  v.  Express  Ck).,  10  R.  I.  244;  Louisville  &  N.  R.  Co.  v.  Man- 
chester Mills,  88  Tenn.  653.  14  S.  W.  314;  Memphis  &  C.  R.  Co.  v.  Reeves,  10 
Wall.  170;  Western  Ti-ansp.  Co.  v.  Downer,  11  Wall.  12U;  Christie  v.  The 
Craighton,  41  Fed.  62.  See,  also,  Mitchell  v.  Express  Co.,  46  Iowa.  214; 
Sager  v.  Railroad  Co.,  31  Me.  228. 

2<o  South  &  N.  A.  R.  Co.  v.  Henleln,  52  Ala.  606;  Steele  v.  Townseud.  87 
Ala.  247;  Berry  v.  Cooper,  28  Ga.  543;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 
Moss,  60  Miss.  1003;  Chicago,  St.  L.  tV-  N.  ().  li.  C(i.  v.  Abels.  Id.  1017;  Gains 
V.  Transportation  Co.,  28  Ohio  St.  418;  United  States  Express  Co.  v.  Backnian, 
Id.  144;  Graham  v.  Davis,  4  Ohio  St.  362;  Union  Express  Co.  v.  Graham,  26  Ohio 
St.  595;  Slater  v.  Railway  Co.,  29  S.  C.  96,  6  S.  E.  936;  Swindler  v.  Hilliard, 
2  Rich.  Law  (S.  C.)  286;  Baker  v.  Brinson.  9  Rich.  Law  (S.  C.)  201;  Missouri 
Pac.  Ry.  Co.  v.  China  Manuf'g  Co.,  79  Tex.  26.  14  S.  W.  785;  Ryan  v.  Rail- 
road Co.,  65  Tex.  13;  Brown  v.  Express  Co.,  15  W.  Va.  812;  Shrlver  v.  Rail- 
road Co.,  24  Minn.  506;  Chicago,  B.  &  Q.  R.  Cc  v.  IMauuing.  23  Neb.  552.  :',7 
N.  W.  462. 

241  Tower  v.  Railroad  Co.,  7  Hill  (N.  Y.)  47.  But  see  HoUister  v.  Nowlen, 
19  Wend.  234;  Yerkes  v.  Sabin,  97  Ind.  141.  "To  effect  a  delivery  to  a  car- 
rjler,  there  must  be,  either  actually  or  Ip  legal  effect  a  complete  surrender  to 
biin  of  possession  and  ciistody;  and,  as  a  consequence,  all  control  over  the 
i^Minds  imist  Til.  nhaiuli  lu  .1  iVy  iTic  owiu"'  until  the  purpose  of  the  bailment  has 
be. 'II  arc.,ii,;,ii.-,iien;  and,  iiniil  this  ]r.i>  been  done.  It  cannot  be  sald^that^the 
can-ifi-  has  assiitriod   auy   resiiuusibiliiy   for  them  as  carrier."    Hutch.    Carr. 

r&i.  ^        ~^~ 

s*a  Hutch.  Carr.  g  86. 


356  CARRIERS    OF    GOODS.  [Ch.   7 

against  loss,  the  proprietor  of  the  ship  was  held  not  liable  as  a  com- 
mon carrier. 2*^  So,  also,  where  one  who  shipped  goods  by  boat, 
put  a  guardian  on  board,  who  locked  the  hatches,  and  went  with  the 
goods  to  see  that  they  were  delivered  safely,  the  proprietor  of  the 
boat  was  held  not  liable  as  a  common  carrier,  there  "not  being  any 
trust  in  the  defendant,  and  the  goods  were  not  to  be  considered  as 
ever  having  been  in  his  possession,  but  in  the  possession  of  the  com- 
pany's servant."  *** 

In  Wyckoff  v.  Ferry  Co.,^*°  it  w'as  said:  "A  ferryman  is  not  a 
common  carrier  of  the  property  retained,  by  a  passenger  in  his  own 
custody  and  under  his  own  control,  and  liable  as  such  for  all  losses 
and  injuries  except  those  caused  by  the  act  of  God  or  the  public 
enemies.  ♦  ♦  ♦  Property  carried  upon  a  ferryboat,  in  the  cus- 
tody and  control  of  the  owner,  a  passenger,  is  not  at  the  sole  risk 
of  either  the  ferryman  or  the  owner.  If  lost  or  damaged  by  the 
act  or  neglect  of  the  ferryman,  he  must  respond  to  the  owner.  The 
ordinary  rules  governing  in  actions  for  negligence  apply,  and  a  plain- 
tiff cannot  recover  if  he  is  guilty  of  negligence,  on  his  part,  contrib- 
uting to  the  loss.  The  liability  of  a  common  carrier,  in  all  its  ex- 
tent, only  attaches  when  there  is  an  actual  bailment,  and  the  party 
sought  to  be  charged  has  the  exclusive  custody  and  control  of  prop- 
erty for  carriage."  **• 

Act  of  God. 

Where  goods  have  been  lost  or  injured  by  what  is  known  in  legal 
phraseology  as  the  "act  of  God,"  the  carrier  is  not  liable.  He  is 
not  an  insurer  against  such  perils.  While  the  authorities  are  unan- 
imous in  recognizing  the  exception,  they  are  not  wholly  consistent 
in  its  application.  A  loss  is  caused  by  the  act  of  God  when  jt  is 
occasioned  by  the  elementary  forces  of  nature,  entirelvjinconnected 
with  any  human  agency  or  other  cause. "^^  Some  authorities  hold 
that  the  act  of  nature  must  have  been  violent,  in  order  to  excuse 

243  Cohen  v.  Frost,  2  Duer  (N.  Y.)  335. 
24*  East  India  Co.  v.  Pulleu,  1  Strange,  U90. 
24  5  52  N.  Y.  32. 

246  See,  also,  "Baggage,"  post,  p.  392. 

247  Redm.  Ry.  Carr.  p.  122;  Nugent  v.  Smith,  1  C.  P.  Div.  19,  423,  1  Eng. 
Ruling  Cas.  218. 


?;§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE AS    INSURERS.  367 

the  carrier;  **"  others,  that  it  is  sufiBclent  if  the  accident  is  in  no  way 
attributable  to  the  fault  or  negligence  of  the  carrier,  provided  no        ^ 
other  human  agency  contributed.^*^      The  true  test  is  the  entire  ab- ^^-^^^ 
sence  of  any  human  agency  in  producing  the  loss.-""      The  presence 
or  absence  of  violence  is  immaterial,  except  in  its  effect  on  the  ques- 
tion as  to  whether  the  carrier  exercised  due  care  to  preserve  the 
goods.*"^     The  less  sudden  and  violent  actions  of  the  elements  may 
be  more  readily  foreseen  and  guarded  against,  and  therefore  a  fail 
ure  to  do  so  will  ordinarily  be  negligence,  which  is  regarded  as  the 
proximate  cause  of  the  loss,  rather  than  the  action   of  the  ele- 
ments.^'^^ 

(Same — Inevitable  Accident. 

The  phrase  "inevitable  accident"  must  not  be  confounded  with  the 
phrase  "act  of  God."  The  two  are  not  synonymous.  "It  is  obvi- 
ous, as  was  pointed  out  by  Lord  Mansfield  in  Forward  v.  Pittard,""** 
that  all  causes  of  inevitable  accident  (casus  fortuitus)  may  be  di- 
vided into  two  classes, — those  which  are  occasioned  by  the  elemen- 
tary forces  of  nature,  unconnected  with  the  agency  of  man  or  other 
cause;  and  those  which  have  their  origin,  either  in  whole  or  in 
part,  in  the  agency  of  man,  whether  in  acts  of  commission  or  omis- 
sion, of  nonfe-asance  or  misfeasance,  or  in  any  other  cause  independ- 
ent of  the  agency  of  natural  forces.  It  is  obvious  that  it  would  b»' 
altogether  incongruous  to  apply  the  term  'act  of  God'  to  the  latter 
class  of  inevitable  accidents.  It  is  equally  clear  that  storm  and 
tempest  belong  to  the  class  to  which  the  term  'act  of  God'  is  prop 
erly  applicable."  ^^* 

248  Lawson,  Bailm.  §§  119-121;    Hutch.  Carr.  §  176. 

249  Hutch.  Carr.  §  175;  Story,  Bailm.  §§  489,  490.  511;  2  Kent,  Coram.  597. 
See  criticism  of  Colt  v.  McMechen,  6  Johns.  IGO,  in  American  notes  to  Cogtjs  v- 
Bernard,  Smith,  Lead.  Cas.  p.  317. 

2B0  Merrltt  v.  Earle,  29  N.  Y.  115;  Trent.  Xav.  Co.  v.  Ward,  8  Esp.  127; 
McArthur  v.  Sears,  21  Wend.  190;  Ewart  r.  Street,  2  Bailey  {&,  O.)  157;  Back- 
house V.  Sneed,  1  Murph.  (N.  C.)  173. 

281  Schouler,  Bailm.  p.  891. 

2  52  Post,  p.  401. 

288  1  Term  R  27. 

2  84  Nugent  V.  Smith,  1  0.  P.  Div.  19.  Cf.  Fish  t.  Chapman,  2  Qa.  849;  Cen- 
tral Line  v.  Lowe,  50  Ga.  509;  Hays  v.  Kennedy,  41  Pa.  St.  378. 


858  CARRIERS    OF    GOODS.  [Ch.   7 

Same — Proximate  and  Exclusire  Cause. 

In  fixing  liability  for  consequences,  the  common  law  looks  only  to 
the  proximate  cause  of  the  result  under  consideration.  All  other  con- 
tributing causes  are  disregarded.  Therefore  the  act  of  God,  in  order 
to  relieve  the  carrier  of  liability,  must  have  been  the  proximate  cause 
of  the  loss.^" 

It  follows  from  the  definition  of  an  "act  of  God"  as  an  act  of  nature, 
entirely  unconnected  with  any  human  agency,  that  it  must  be  the 
exclusive  cause  of  the  loss,  or  the  carrier  will  be  liable.^"*^  So,  where 
a  vessel  struck  a  concealed  anchor  in  a  river,  and  was  sunk,  the  car- 
rier was  held  liable,  because  a  human  agency  had  contributed  to  the 
injury,  by  placing  the  anchor  where  it  was  at  the  time  it  was 
struck.^"^  So,  if  an  unseaworthy  vessel  is  sunk  by  an  act  of  God — a 
violent  wind — that  would  not  have  sunk  a  seaworthy  vessel,  the  own- 
ers are  liable  to  the  shippers  for  the  loss  they  sustained.^  ^^  In  Mc- 
Arthur  v.  Sears  *°*  the  master  of  a  vessel,  though  exercising  due  care, 
on  a  hazy  and  snowy  night,  when  objects  were  diflScult  to  distin- 
guish, mistook  a  signal  light,  and  in  consequence  his  vessel  grounded. 
The  carrier  was  held  liable.  Cowen,  J.,  said:  "I  have  sought  in  vain 
for  any  case  to  excuse  the  loss  of  the  carrier  where  it  arises  from 
human  action  or  neglect,  or  any  combination  of  such  action  or  neg- 
lect, except  force  exerted  by  a  public  enemy.  No  matter  what  de- 
gree of  prudence  may  be  exercised  by  the  carrier  and  his  servants, 
although  the  delusion  by  which  it  is  baffled  or  the  force  by  which  it 
is  overcome  be  inevitable,  yet,  if  it  be  the  result  of  human  means, 
the  carrier  is  responsible.  *  ♦  ♦  i  believe  it  is  matter  of  history 
that  inhabitants  of  remote  coasts,  accustomed  to  plunder  wrecked 
vessels,  have  sometimes  resorted  to  the  expedient  of  luring  benighted 
mariners,  by  false  lights,  to  a  rocky  shore.     Even  such  a  harrowing 

288  Merritt  v.  Earle,  29  N.  Y.  115;  Smith  v.  Sheperd,  Abb.  Shlpp.  (13th  Ed.) 
p.  459;   New  Brunswick  Steamboat,  etc.,  Co.  v.  Tiers,  24  N.  J.  Law,  G97. 

2B6  Packard  v.  Taylor,  85  Ark.  402;  Merritt  v.  Earle,  29  N.  Y.  115;  Mi- 
chaels V.  Railroad  Co.,  30  N.  Y.  564;  King  v.  Shepherd,  3  Story,  349,  Fed.  Cas. 
No.  7,804;  Ewart  v.  Street,  2  Bailey,  157;  Sprowl  v.  Kellar.  4  Stew.  &  P.  382. 
Of.  Blythe  v.  Railroad  Co.,  15  Colo.  333,  25  Pac.  782. 

2BT  Trent  Nav.  Co.  v.  Ward,  3  Esp.  127. 

«88  Packard  v.  Taylor,  35  Ark.  402;  Bell  v.  Reed»  4  Bin.  (PaJ  127. 

1B9  21  Wend.  190. 


§§   81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE AS    INSURERS.  359 

combination  of  fraud  and  robbery  would  form  no  excuse.  •  •  • 
The  difficulty  returns,  therefore.  If  we  receive  the  immediate  agency 
of  third  persons  in  any  shape,  we  open  the  very  door  for  collusion 
which  has  denied  an  excuse  by  reason  of  theft,  robbery,  and  fire." 

Same — Negligence  of  Carrier. 

It  is  the  duty  of  common  carriers  to  use  reasonable  care  and  dili 
gence  to  avoid  all  loss  or  injury,  even  from  causes  against  which  they 
are  not  insurers.  If  they  fail  to  do  so,  and  the  goods  are  damaged 
by  an  act  of  God,  or  other  excepted  peril,  their  negligence  is  regarded 
as  the  proximate  cause  of  the  loss,  and  the  carrier  is  held  liable.^** 
Therefore,  if  the  carrier  negligently  exposes  the  goods  to  peril  from 
an  act  of  God,^®^  as  where  he  puts  to  sea  in  an  unseaworthy  vessel,^'* 
or  attempts  to  cross  a  stream  with  an  insufficient  team,''®^  or  when 
a  dangerous  wind  is  blowing,^***  he  is  liable  for  the  re>:ulting  loss. 
So,  also,  where  goods  are  injured  or  exposed  to  peril,  though  by  the 
act  of  God,  it  is  the  carrier's  duty  to  render  the  loss  as  light  as  pos- 
sible; and,  if  he  negligently  fails  to  do  so,  he  is  liable  for  all  losses 
which  he  might,  with  reasonable  care,  have  prevented.*®* 

Same — Dciation  from  Usual  Course. 

Where  the  carrier,  without  necessity  or  reasonable  excuse,  deviates 
from  the  usual  or  agreed  route  of  travel,  he  is  absolutely  liable  for 

260  Wolf  V.  Express  Co.,  43  Mo.  421;  Prultt  v.  Railroad  Co.,  62  Mo.  527; 
Davis  V.  Railroad  Co.,  89  Mo.  340;   Elliott  v.  Rossell,  10  Johns.  1. 

261  Williams  v.  Grant,  1  Conn.  487;  Morgan  v.  Dibble,  24  Tex.  107;  Klaiiber 
V.  Express  Co.,  21  Wis.  21;  Cook  v.  Gourdin,  2  Nott  &  McC.  (S.  C.)  19.  Where 
the  carrier  takes  one  of  two  routes  which  he  knows  is  more  unsafe  and  dan- 
gerous than  the  other,  he  assumes  the  risk  of  loss  by  so  doing.  Express  Co. 
V.  Kountze,  8  Wall.  342. 

2  82  BeU  V.  Reed,  4  Bin.  (Pa.)  127. 

268  Campbell  v.  Morse,  1  Harp.  (S.  C.)  2G2. 

284  Cook  v.  Gourdin,  2  Nott  &  McC.  (S.  C.)  19. 

286  Hutch.  Carr.  §  201;  Craig  v.  Childress,  I'eck,  270;  Day  v.  Ridley,  16 
Vt  48.  The  carrier  need  exercise  only  reasonable  care.  Nashville,  etc..  R. 
Co.  V.  David,  6  Heisk.  261;  Momson  v.  Davis.  20  Pa.  St  171;  Railroad  Co.  v. 
Reeves,  10  Wall.  176;  Black  v.  Railroad  Co.,  30  Neb.  197,  46  N.  W.  428; 
Gillespie  v.  Railroad  Co.,  6  Mo.  App.  554;  Nugent  v.  Smith,  1  C.  P.  Div.  423; 
The  Generous,  2  Dods.  322.  But  see  The  Niagara  v.  Cordes,  21  How.  7; 
King  V.  Shepherd,  3  Stoi-y,  349,  Fed.  Cas.  No.  7,804.  See,  also,  Smith  t. 
Railroad  Co.,  91  Ala.  455,  8  South.  754;   Milwaukee  i:  St  P.  R.  Co.  v.  Kellogg. 


360  CARRIERS    OF    GOODS.  [Ch.   7 

the  goof^a,  wifT^QTit  exneptioD  from  any  cause  whatsoever. '°°  It  is 
wholly  immaterial  that  the  goods  were  destroyed  by  an  act  of  God,  or 
other  excepted  peril,  or  that  they  would  have  been  likewise  de- 
stroyed even  if  the  usual  route  had  been  followed.^^^  This  absolute 
liability  rests  on  the  proposition  that  the  wrongful  deviation  amounts 
to  a  conversion,  and  the  carrier  is  thereafter  liable  as  owner  until  the 
original  owner  voluntarily  accepts  a  return  of  the  goods.^®*  This 
principle  has  already  been  fully  discussed  in  the  chapter  on  "Hir- 
ing." ^®^  Nothing  but  a  real  necessity,  as  when  the  safety  of  the 
goods  requires  it,  wili  justify  a  deviation.^^"  In  such  cases  the  con- 
sent of  the  owner  may  be  presumed. '^^^     But  the  burden  of  proving  a 

94  U.  S.  475;  Blythe  v.  Railroad  Co.,  15  Colo.  333,  25  Pac.  702;  Id.,  97  Am. 
Dec.  409,  note;  Baltimore  &  O.  R.  Co.  v.  Sulphur  Springs  School  Dist.,  96  Pa- 
st 65;  Denny  v.  Railroad  Co.,  13  Gray,  481;  CoUIer  v.  Valentine,  11  Mo.  299. 
Where  goods  are  wet  by  a  storm,  the  carrier  must  open  and  dry  them.  Chou- 
teaux  V.  Leech,  IS  Pa.  St.  224. 

a««  Crosby  v.  Fitch,  12  Conn.  410;  Powers  v.  Davenport,  7  Blackf.  497; 
Davis  v.  Garrett,  6  Biug.  716;  Merchants'  Dispatch  Transp.  Go.  v.  Kahn,  76 
IlL  520. 

867  Id.;    Hutch.  Carr.  §  190. 

26  8  The  true  reason  for  this  absolute  liability  has  not  always  been  recog- 
nized, and  there  has  been  much  loose  talk  on  the  subject,  even  in  cases  cor- 
rectly  decided.  See  Davis  v,  Garrett,  6  Bing.  716,  where  Tindal,  C.  J.,  said: 
"But  we  think  the  real  answer  to  the  objection  is  that  no  wrongdoer  can  be 


allowed  to  apportion  or  qualify  his  own  wrong,  and  that,  as  a  loss  has  actually 
happened  while  this  wrongful  act  was  In  operation  and  force,  and  which  is 
dttnBUtabl^  to  bis  wrongful  act,  he  canuot  set  up,  as  an  answer  to  the  action. 
the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been  done.  It 
might  admit  of  a  different  construction  if  he  could  show,  not  only  that  the 
same  loss  might  have  happened,  but  that  it  must  have  happened  if  the  act 
complained  of  had  not  been  done."  See,  also,  Lawson,  Bailm.  §  127;  Hutch. 
Carr.  §  190;  Maghee  v.  Camden  &  A.  R.  Transp.  Co.,  45  N.  Y.  514.  Where 
thp  pflTfier  has  wrongfully  refused  to  deliver  the  goods,  he  Is  liable  for  a  sub- 
sequent destruction  of  them  by  an  act  of  God,  for  he  is  guilty  of  a  conversion. 
Richmond  &  D.  R.  Co.  v.  Benson,  86  Ga.  203,  12  S.  E.  357. 
209  See  ante,  p.  189. 

270  Hand  v.  Baynes,  4  Whart.  (Pa.)  204;  Johnson  v.  Railroad  Co.,  33  N,  Y. 
610.  Taking  another  vessel  in  tow,  when  not  in  distress,  constitutes  a  devia- 
tion.   Natchez  Ins.  Co.  v.  Stanton,  2  Smedes  &  M.  340. 

271  Johnson  v.  Railroad  Co.,  33  N,  Y.  610.  And  see  International  &  G.  N. 
E.  Co.  V.  Wentworth  (Tex.  Civ.  App.)  27  S.  W.  680. 


^§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE AS    INSURERS.  301 

necessity  for  the  deviation  rests  upon  the  carrier.*"  In  accordance 
with  these  principles,  a  master  who  deviated  from  the  usual  and  cus- 
tomary course  of  his  voyage  was  held  liable  for  a  loss  caused  by  a 
tempest.*^'  So  when  the  contract  was  to  carry  by  land,  and  the 
goods  were  sent  by  water,  the  carrier  is  liable  for  their  destruction 
by  the  act  of  God.^^*  So  he  is  liable  if  he  agrees  to  send  them  by  a 
particular  line  of  boats,  and  sends  them  by  another.'*^'  If  the  owner 
of  the  designated  line  of  boats  refuses  to  receive  the  goods,  the  cai-rier 
should  notify  the  owner,  and  await  instructions."* 

Same —  Unreasonable  Delay. 

The  fact  that  there  has  been  a  negligent  and  unreasonable  delay 
in  the  transportation,  so  that  the  goods  are  overtaken  by  casualty  due 
solely  to  natural  causes,  and  which  could  not  have  been  anticipated 
in  the  exercise  of  reasonable  foresight,  nor  avoided  after  the  danger 
became  apparent,  will  not  render  the  carrier  liable  for  loss  resulting 
from  such  casualty.^^^  Thus,  where  a  canal  boat  was  wrecked  by  an 
extraordinary  flood,  which  it  would  have  escaped  had  it  not  been  de- 
layed by  the  lameness  of  a  horse,  the  carrier  was  held  not  liable.''^'' 
Other  authorities  dissent  from  this  doctrine,  and  hold  that  if  the  car- 
rier delays  an  unreasonably  long  time  on  the  journey,  and  it  is  proved 

2T2  Le  Sage  v.  Railroad  Co.,  1  Daly  (N.  Y.)  306. 

27  3  Davis  v.  Garrett,  6  Bing.  716.  The  same  principle  applies  to  carriers  by 
land.  See  Powers  v.  Davenport,  7  Blackf.  49G;  Philips  v.  Brigham.  2G  Gn. 
617;   Lawrence  v.  McGregor,  Wright  N.  P.  193. 

274  Ingalls  V.  Brooks,  Edm.  Sel.  Cas.  104;  Philadelphia  &  K.  K.  Co.  v.  Beck. 
125  Pa.  St  620,  17  Atl.  505.  So,  where  the  agreement  was  to  send  by  canal, 
and  they  were  sent  by  sea.    Hand  v.  Baynes,  4  Whart  (Pa.)  204. 

276  Johnson  v.  New  York  Cent  R.  Co.,  33  N.  Y.  610;  Cox  v.  Foscue.  37  Ala. 
505.  So,  if  the  agreement  is  to  send  by  steam,  and  the  goods  are  sent  by 
sail.  Wilcox  v.  Parmelee,  3  Sandf.  GIO.  A  can-ier  must  follow  insli-uctious  as 
to  the  selection  of  carriers  beyond  his  own  route.  Johnson  v.  New  York  Cent. 
R.  Co.,  supra. 

276  Goodrich  v.  Thompson,  44  N.  Y.  324.  And  see  Fisk  v.  Newton,  1  Deuio. 
45. 

27  7  Denny  v.  Railroad  Co.,  13  Gray,  481;  Michigan  Cent  R.  Co.  v.  Burrows. 
33  Mich.  6;  Hoadley  v.  Transportation  Co.,  116  Mass.  304;  Morrison  v.  Da  vie, 
20  Pa.  St.  171;  Railroad  Co.  v.  Reeves,  10  Wall.  176;  McClary  v.  Railroad 
Co.,  3  Neb.  44.  And  see  Caldwell  v.  Express  Co.,  1  Flip.  88,  Fed,  Cas.  No. 
2,303;   Collier  v.  Valentine,  11  Mo.  299. 

27  8  Morrison  v.  Davis,  20  Pa.  St  171. 


362  CARRIERS    OF    GOODS.  [Ch.  7 

that  but  for  such  unreasonable  delay  he  would  hare  been  able  to 
carry  the  goods  in  safety,  he  will  be  liable  for  an  injury,  though  caused 
by  an  act  of  God.  The  courts  of  New  York  and  some  other  states 
take  this  view  of  the  question.^^®  The  true  principle  would  seem  to 
be  that  the  carrier  is  not  liable  unless  the  wrongful  delay  was  the 
proximate  cause  of  the  loss.^^°  That  is  to  say,  unless  the  natural 
and  probable  consequence  of  the  delay  was  to  expose  the  goods  to 
peril,  either  from  an  act  of  God  or  other  cause,  the  carrier  cannot  be 
held  liable  on  the  ground  of  delay  alone.  It  has  been  thought  by 
some  writers  that  a  wrongful  delay  should  have  the  same  effect  upon 
the  carrier's  liability  as  a  wrongful  deviation.^*^  But  this  cannot  be 
true,  unless  such  delay  can  be  regarded  as  such  an  act  of  dominion 
over  the  property  as  to  amount  to  a  conversion. 

Same — Ulustrntions  of  ^^ Acts  of  God." 

Losses  by  the  following  causes  have  been  held  to  be  losses  by  the 
act  of  God:  Lightning,^^^  tempest,^^^  earthquake,^®*  extraordinary 
flood,^®°  a  sudden  gust  ^^^  or  severe  gale  ^^'^  of  wind,  the  sudden  ces- 

2T9Read  V.  Spaulding,  30  N.  Y.  630;  Michaels  v.  Railroad  C5o.,  Id.  564;  Con- 
diet  V.  Railway  Co.,  54  N.  Y.  500;  Dunson  v.  Railroad  Co.,  3  Lans.  265; 
Hewett  V.  Railroad  Co.,  63  Iowa,  611,  19  N.  W.  790;  Read  v.  Railroad  Co.,  6C) 
Mo.  199;  McGraw  v.  Railroad  Co.,  18  W.  Va.  361;  Pruitt  v.  Railroad  Co.,  62 
Mo.  527;  Michigan  Cent.  R.  Co.  v.  Curtis,  80  111.  324;  Southern  Exp.  Co.  v. 
Womack,  1  Heisk.  250. 

280  Railroad  Co.  v.  Reeves.  10  Wall.  176;  Morrison  v.  Davis,  20  Pa.  St  171; 
Denny  v.  Railroad  Co.,  13  Gray,  481;  Hoadley  v.  Transportation  Co.,  115 
Mass.  304.    And  see  Jones  v.  Gilmore,  91  Pa.  St.  310,  314. 

281  Brown,  Carr.  §  98;  Hutch.  Carr.  §§  199,  200.  Mr.  Lawson  (Bailm.  §  12Q) 
expresses  no  opinion  on  the  subject. 

282  Forward  v.  Pittard,  1  Term  R.  27,  33. 
2  83  Gillett  V.  Ellis,  11  111.  579. 

284  Slater  v.  Railway  Co.,  29  S.  C.  90,  0  S.  E.  936. 

2  86  Lovering  v.  Coal  Co.,  54  Pa.  St.  291;  Nashville,  etc.,  R.  Co.  v.  David, 
6  Heisk.  2G1;  Davis  v.  Railroad  Co.,  89  Mo.  340,  1  S.  W.  327;  Norris  v.  Rail- 
way Co.,  23  Fla.  182,  1  South.  475;  Smith  v.  Railway  Co.,  91  Ala.  455,  8 
South.  754.  A  flood  siif;h  ns  has  9i;|piirred  but  twice  in  a  generation  is  an  act 
.of  God.    Pearce  v.  The  Thomas  Newton,  41  Fed.  106. 

288  Germania  Ins.  Co.  v.  The  Lady  Pike,  17  Am.  Law  Rep.  614. 

287  Blythe  v.  Railroad  Co.,  15  Colu.  oiJo,  25  Pac.  7U2;  Id.,  11  Lawy.  Rep. 
Ann.  615,  and  notes.    See,  also,  Miltimore  v.  Railroad  Co.,  37  Wis.  190. 


§§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE AS    INSURER*.  363 

sation  of  wmd,^^^  snowstorms,^®®  the  breaking  of  a  dam,"°  the 
freezing  of  navigable  waters,-"^  the  freezing  of  fruit  trees  en 
route.^®^  Where  a  vessel  struck  on  a  hidden  rock,  whose  position 
was  not  previously  known,  the  loss  was  held  to  be  caused  by  the 
act  of  God.'®'  The  sinking  of  a  boat  by  a  snag  lodged  in  the  river 
by  a  freshet  has  been  held  to  be  within  the  exception;  ^^*  but  where 
a  boat  was  lost  by  striking  the  mast  of  a  sunken  vessel,^"'*  or  by  run- 
ning on  a  piece  of  timber  projecting  from  a  wharf,  and  not  visible  in 
ordinary  tides/"*  the  loss  was  not  regarded  as  caused  by  an  act  of 
God;  a  human  agency  having  intervened,  in  placing  the  obstructiou 
at  the  place  where  the  damage  was  done.  Of  course,  if  the  carrier 
is  negligent  in  failing  to  avoid  the  peril,  his  negligence,  and  not  the 
act  of  God,  is  the  cause  of  the  loss.^®" 

Same — Qises  not  within  the  A<\oJ  God. 

Losses  caused  by  fire,  unless  originated  by  lightning, ''°°  the  explo- 

««8  Colt  V.  McMechen,  6  JohJs.  160. 

289  Black  V.  Railroad  Co..  30  Neb.  197.  46  N.  W.  428;  Felnberg  v.  Railroad 
Co.,  52  N.  J.  Law,  451,  20  Atl.  33;  Chapin  v.  Railroad  Co.,  79  Iowa.  582,  44 
N.  W.  820. 

290  Long  V.  Railroad  Co.,  147  Pa.  St.  343,  2^^  Atl.  459  (the  .Johnstown  flood 
of  1889). 

291  Bowman  v.  Teall,  23  Wend.  306;  Parsons  v.  Hardy,  14  Wend.  215; 
Worth  V.  Edmonds,  52  Barb.  40;   West  v.  The  Berlin,  3  Iowa,  532. 

292  Vail  V.  Railroad  Co.,  63  Mo.  230. 

298  Williams  v.  Grant,  1  Conn.  487.  Provided  it  is  not  laid  down  In  any 
chart.    PennewUl    v.  Cullen,  5  Har.  (Del.)  238. 

294  Smyrl  v.  Niolen,  2  Bailey  (S.  C.)  421.  See,  also,  Faulkner  v.  Wright. 
Rice,  107. 

29e  Merritt  v.  Earle,  29  N.  Y.  115. 

298  New  Brunswick  Steam  Nav.  Co.  v,  Tiere,  24  N.  J.  Law,  097 

298  That  a  similar  flood  had  occurred  once  In  each  of  the  two  preceding 
years,  but  the  carrier  had  not  changed  the  consU-uction  of  its  road,  or  pro- 
vided other  means  of  crossing  the  river,  does  not  render  him  liable;  8ucb 
floods  being,  up  to  the  time  of  the  trial,  otherwise  imprecedented.  Norris  v. 
Savannah,  F.  &  W.  Ry.  Co.,  23  Fla.  182,  1  South.  475.     See  ante,  p.  347. 

299  Forward  v.  Pittard,  1  Term  R.  27,  33;  Coudict  v.  Railway  Co.,  54  N.  Y. 
500;  Miller  v.  Steam  Nav.  Co.,  10  N.  Y.  431;  Parsons  v.  Monteath,  13  Barb.  353; 
Patton  V.  Magrath,  Dud.  (S.  C.)  159;  Gilmore  v.  Carman,  1  Smedes  &  M.  279; 
Moore  v.  Railroad  Co.,  3  Mich.  23;  Cox  v.  Patterson,  30  Ala.  608;  Hyde  v. 
Trent  Nav.  Co.,  5  Term  R.  389.  Contra,  Hunt  v.  Morris,  6  Mart  (La.)  676. 
The  Chicago  fire  was  held  not  to  be  an  act  of  Cod  in  Chicago  &  N.  W.  R.  Co. 


364  CARRIERS    OF    GOODS.  [Ch.   7 

sion  of  a  boiler,'°°  collision, ^°^  heat,^°*  unseen  obstructions  to  navi- 
gation,^"' and  the  shifting  of  a  buoy,^°*  have  been  held  not  to  be 
losses  by  the  act  of  God.  It  will  be  seen  that  the  cases  are  not 
wholly  consistent. 

Public  Enemy. 

Common  carriers  are  not  insurers  against  losses  caused  by  the 
acts  of  the  public  enemy.'""  The  "public  enemy"  means  an  organ- 
ized military  force,  with  which  the  country  of  the  carrier  is  at 
war,'°®  and  pirates,'"^  who  are  regarded  as  the  common  enemies  of 
all  mankind.  Losses  by  thieves  and  robbers,  strikers,  rioters,  and 
the  like,  do  not  fall  within  the  exception.^"'     Common  carriers  are 

V.  Sawyer,  69  111.  285.  Carriers  using  steam  are  liable  for  losses  by  fire. 
Garrison  v.  Memphis  Ins.  Co.,  19  How.  312;  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344;  Hale  v.  New  Jersey  Steam  Nav.  Co.,  15  Conn. 
539;    Patton  v.  Magrath,  Dud.  (S.  C.)  159. 

300  The  Mohawk,  8  Wall.  153;  Bulkley  v.  Naumkeag  &  Cotton  Co.,  24  How. 
386. 

301  Mershon  v.  Hobensack,  22  N.  J.  Law,  372;  Plaisted  v.  Navigation  Co., 
27  Me.  132.  "For  no  collision  upun  laud  can  take  place  without  the  direct  in- 
tervention of  man;  and,  if  happening  between  vessels  at  sea,  in  a  tempest 
which  made  it  inevitable,  the  tempest  would  be  the  vis  major,  and  not  the  col- 
lision."    Hutch.  Carr.  §  184. 

302  Beard  v.  Railway  Co.,  79  Iowa,  518,  44  N.  W.  800. 

303  New  Brunswick,  S.  &  C.  Transp.  Co.  v.  Tiers,  24  N.  J.  Law,  697;  Friend 
V.  Woods,  6  Grat.  (Va.)  189. 

80*  Reaves  v.  Waterman,  2  Speer,  Law  (S.  C.)  197. 

30  5  Hutch.  Carr.  §  203  et  seq.;   Russell  v.  Neimann,  17  C.  B.  (N.  S.)  163. 

806  Lawson^  Bailm.  §  129;  Story,  Bailm.  §§  512,  526;  Ang.  Carr.  §  200; 
Russell  V.  Neimann,  17  C.  B.  (N.  S.)  163.  See,  also,  Seligman  v.  Armijo,  1  N. 
M.  459. 

30T  Lawson,  Bailm.  §  129;  Story,  Bailm.  §  .")26;  Pickering  v.  Barkley,  Style, 
132.     But  see  The  Belfast  v.  Boon,  41  Ala.  50. 

80  8  Coggs  V.  Bernard,  2  Ld.  Raym.  9U9,  918;  The  Belfast  v.  Boon,  41  Ala. 
50;  Boon  v.  The  Belfast,  40  Ala.  184;  Lewis  v.  Ludwick,  6  Cold.  368;  Schief- 
felin  V.  Harvey,  6  Johns.  170;  Watkinscn  v.  Laughton,  8  Johns.  164;  Morse 
V.  Slue,  1  Vent.  190.  Indians  on  the  warpath  are  public  enemies.  Holladay 
V.  Kennard,  12  Wall.  254.  Strikers  are  not  a  "public  enemy,"  within  the 
meaning  of  the  exception.  Missouri  Pac.  Ry.  Co.  v.  Nevill,  60  Ark.  375,  30  S. 
W.  425.  Their  Interference  may  excuse  a  delay,  however,  for  the  carrier  Is 
not  an  Insurer  of  prompt  delivery.  Geismer  v.  Railway  Co.,  102  N.  Y.  563, 
7  N.  E.  828;  Pittsburgh,  etc.,  R.  Co.  v.  Hazen,  84  111.  36;  Lake  Shore  &  M.  S.  Ry. 
Co.  V.  Bennett,  89  Ind.  457;    Pittsburgh,  C.  &  SL  L.  Ry.  Co.  v.  Hollo  well,  65 


c?1 


§§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGK AS    IN8UKKR8 


liable  for  losses  caused  by  an  insurrection, «'•  unless  it  assumes  the 
proportions  of  a  civil  war,  as  in  the  case  of  the  American  Revolu- 
tion or  the  late  war  between  the  states.'^"  A  declaration  of  war 
is  not  necessary,  if  actual  hostilities  exist. ^^^  If,  after  entering 
into  a  contract  of  carriage,  war  breaks  out  between  the  country  of 
the  carrier  and  that  to  which  the  goods  are  to  be  carried,  its  nonper- 
formance will  be  excused. *^^ 

As  in  the  case  of  losses  by  act  of  God,  the  carrier  is  liable  for 
losses  by  the  public  enemy,  if  his  negligence  contributed  thereto."'^ 
If  a  carrier  deviates  from  his  route,  he  is  absolutely  liable  for  all 
losses,  and  it  is  wholly  immaterial  whether  the  loss  would  have  hap- 
pened without  such  deviation  or  not."^  In  the  case  of  a  wrongful 
delay  the  same  considerations  are  applicable  here  as  in  the  case  of 
loss  by  act  of  God.  That  is  to  say,  unless  loss  by  the  ?ict  of  the  public 
enemy  was  a  natural  and  probable  result  of  the  delay,  the  carrier 
ought  not  to  be  held  liable.^  ^' 

Act  of  the  Shipper. 

Common  carriers  are  not  insurers  against  losses  caused  by  the 
fraud  or  fault  of  the  shipper.^^®      For  example,  carriers  have  a  right 

Ind.  188;  Hass  v.  Railroad  Co.,  81  Ga.  792,  Gulf,  0.  &  S.  F.  Ry.  Co.  v. 
Levi,  76  Tex.  337,  13  S.  W.  191.  Cf.  Baltimore  A:  O.  R.  Co.  v.  O'Dounell.  4!) 
Ohio  St.  489,  32  N.  E.  476. 

800  Missouri  Pac.  Ry.  Co.  v.  Nevill,  60  Ark.  375.  30  S.  W.  42r.:  Forward  v. 
Pittard,  1  Term  R.  27,  29.    But  see  Nesbite  v.  Luskin^on,  4  Term  R.  783. 

810  Mauran  v.  Insurance  Co.,  6  Wall.  1;  Nashville  &  C  R.  Co.  v.  Estes,  lo 
Lea,  749;  The  Prize  Cases,  2  Black,  635;  Hubbard  v.  Harnden  Exp.  Co.,  10 
R.  I.  244;  Lewis  v.  Ludwiok,  6  Cold.  3(58.  lu  the  war  between  the  states  tli. 
Confederate  forces  were  neither  robbers  on  land  nor  pirates  by  sea.  Fifleld 
V.  Insurance  Co.,  47  Pa.  St.  160;  xMatirau  v.  Insurance  Co.,  6  Wall.  1.  But 
see  Dole  v.  Merchants'  Mutual  Marine  Ins.  Co.,  51  Me.  465. 

311  The  Prjze  Cases,  2  Black.  635. 

812  Esposito  V.  Bowden,  7  El.  &  Bl.  762;  Reid  v.  Hosklns.  5  El.  &  Bl.  729. 
affirmed  6  El.  &.  Bl.  953. 

818  Forward  v.  Pittard,  1  Term  R.  27;  Parker  v.  James,  4  Camp.  112;  Clark 
V.  Railroad  Co.,  39  Mo.  184;    Express  Co.  v    Kountze.  8  Wall.  342. 

31*  Parker  v.  James,  4  Camp.  112.  And  see  comment  on  this  case  by  Tin- 
dal,  C.  J.,  in  Davis  v.  Garrett,  6  Bing.  716,  723. 

815  Southern  Exp,  Co.  v.  Womack,  1  Heisk.  256;  Holladay  v.  Kcnnaid,  12 
WaU.  254.    See  ante,  p.  361. 

816  Where  the  shipper  put  a  horse  in  a  car,  and  opened  and  left  open  8 


866  CARKIERS    OF    GOODS.  [Ch.   7 

to  know  the  value  of  goods  offered  for  carriage,  in  order  that  they 
may  know  what  care  to  exercise,  and  graduate  their  charges  accord- 
ing to  the  risk.^^^  Therefore,  if  the  shipper  misrepresents  the  value 
of  the  goods,  and  they  are  lost,  the  carrier  is  not  liable.  The  ship- 
per need  not  state  the  value  of  the  goods,  unless  asked  to  do  so.^^* 
If  asked,  he  must  state  the  value  truly.^^®  But,  even  if  not  asked, 
he  must  not  mislead  the  carrier  into  thinking  the  goods  of  little 
value.^*°  Thus,  where  money  was  shipped,  concealed  in  a  bag  filled 
with  hay,  the  carrier  was  held  not  liable  for  its  loss.^^^  If  the  effect 
of  the  manner  of  packing  is  to  deceive  the  carrier  as  to  the  value, 
as  where  a  diamond  ring  is  sent  in  a  small  paper  box  tied  with  a 
string,^^^  it  is  immaterial  whether  a  fraud  was  designed  on  the  car- 
rier or  not;  ^^^  "for  by  such  deception  the  carrier  is  thrown  off  his 
guard,  and  neglects  to  give  to  the  package  the  care  and  attention 
which  he  would  have  given  it,  had  he  known  its  actual  value."  ^^* 
Where  the  consignor  of  goods  is  guilty  of  negligence  in  not  properly 

window  through  which  the  horse  jumped,  the  carrier  is  not  liable.  Hutchin- 
son V.  Railroad  Co.,  37  Minn.  524,  35  N.  W.  433.  See,  also,  Roderick  v.  Railroad 
Co.,  7  W.  Va.  54. 

317  Batson  v.  Donovan,  4  Barn.  &  Aid.  21;  Cole  v.  Goodwin,  19  Wend.  251: 
Magnin  v.  Dinsmore,  G2  N.  Y.  35;  Oppenheimer  v.  Express  Co.,  60  111.  02; 
Graves  v.  Railroad  Co.,  137  Mass.  33. 

318  Gorhan  Manuf'g  Co.  v.  Fargo,  45  How.  Prac.  90;  Camden  &  A.  R.  Co.  v. 
Baldauf,  16  Pa.  St.  67;  Relf  v.  Rapp,  3  Watts  &  S.  21;  Southern  Exp.  Co.  v. 
Crook,  44  Ala.  468;  Railroad  Co.  v.  FraloEf,  100  U.  S.  24. 

319  Phillips  V.  Earle,  S  Pick.  182. 

820  As  by  placing  money  in  a  box,  together  with  articles  of  small  value. 
Chicago  &  A.  R.  Co,  v.  Thompson,  19  111.  578;  Maguin  v.  Dinsmore,  62  N.  Y. 
35;    Earnest  v.  Express  Co.,  1  Woods.  .jTo,  Fed.  Cas.  No.  4,248. 

8  21  Gibbon  v.  Paynton,  4  Burrows,  2298. 

8  22  Everett  v.  Southern  Exp.  Co.,  46  Ga.  303.  And  see  Sleat  v,  Fagg,  5 
Barn.  &  Aid.  342. 

3  23  Warner  v.  Transportation  Co.,  5  Rob.  (N.  Y.)  490;  Orange  Co.  Bank  v. 
Brown,  9  Wend.  85;  Pardee  v.  Drew,  25  Wend.  459;  Chicago  &  A.  R.  Co.  v. 
Thompson,  19  IlL  578;  Great  Northern  R.  Co.  v.  Shepherd,  8  Exch,  30,  14  Eng. 
Law  &  Eq.  Rep.  367;   Shaacht  v.  Railroad  Co.,  94  Tenn.  658,  30  S.  W.  742. 

324  Hutch.  Carr.  §  213.  So,  where  a  box  contains  glass,  the  carrier  should 
be  informed  of  it.  American  Exp.  Co,  v.  Perkins,  42  111.  458.  See,  also,  gen- 
erally, Relf  V.  Rapp.  3  Watts  &  S.  21;Hollister  v.  Nowlen,  19  Wend.  234; 
Hayes  v.  Wells,  Fargo  &  Co.,  23  Cal.  185;  St.  John  v.  Express  Co.,  1  Woods, 
612,  Fed.  Cas.  No.  12,228. 


§§    81-82]       LIABILITY    FOR    LOSS    OR    DAMAGE A3    INSURERS.  307 

marking  their  destination  upon  them,  common  carriers  are  not  lia- 
ble for  injuries  resulting  from  their  being  missentj'^^'  or  delivered 
to  the  wrong  person. ^^^  Where  goods  are  injured  by  reason  of  im- 
proper packing,  the  carrier  is  not  liable.^"  The  improper  packing 
which  will  excuse  the  carrier  is  some  internal  or  latent  defect,  of 
which  the  carrier  does  not  know,  and  from  which  loss  or  damage 
ensues  to  the  goods  in  the  ordinary  course  of  transportation  and 
handling.  A  hidden  defect  in  the  packing  is  the  act  of  the  shipper, 
for  which  the  carrier  is  not  responsible.^^* 

AYhore  the  shipper  directs  how  the  goods  shall  be  carried,  tht- 
carrier  is  not  liable  for  injuries  caused  by  the  manner  of  carriage.'" 
So,  where  the  shipper  himself  loads  his  goods  *^°  or  furnishes  the 
car,'^^  or  accompanies  his  goods  under  an  agreement  to  care  for 
them,^^*  the  carrier  is  not  liable  for  any  losses  arising  from  the 
shipper's  negligence  in  the  performance  of  the  duties  assumed  by 
him. 

Public  Authority. 

Common  carriers  are  not  liable  for  goods  taken  from  them  by 
public  authority.^ ^^      Thus,  where  intoxicating  liqilors,  or  goods  in- 

825  Congar  v.  Railroad  Co.,  24  Wis.  157;  The  Huntress,  Davels,  82,  Fed. 
Cas.  No.  6,914;  Erie  R.  Co.  v.  Wilcox,  84  111.  239;  Southern  Exp.  Co.  v. 
Kaufman,  12  Heisk.  161;  Finn  v.  Railroad  Co.,  102  Mass.  283. 

3  26  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Hodapp,  S3  Pa.  St.  22. 

327  Klauber  v.  Express  Co.,  21  Wis.  21.  But  see  The  Colonel  Ledyard,  1 
Sprague,  530,  Fed.  Cas.  No.  3,027.  But,  if  the  Improper  packing  did  not 
contribute  to  the  loss,  the  carrier  is  liable.  Shriver  v.  Railroad  Co.,  24  Minn. 
506. 

32  8  Klauber  v.  Express  Co.,  21  Wis.  21. 

829  w^hite  V.  Winnisimmett  Co.,  7  Cush.  155;  Wilson  v.  Hamilton,  4  Ohio 
St.  722;  Western  &  A.  R.  Co.  v.  Exposition  Cotton  Mills,  81  Ga.  :>2-_'.  7  S.  E.  916. 

330  Miltimore  v.  Railroad  Co.,  37  Wis.  190;  Rlxford  v.  Smith,  52  N.  H.  355; 
Ross  V.  Railroad  Co.,  49  Vt.  364;  Beits  v.  Loan  Co..  21  Wis.  80;  East  Tenn- 
essee, V.  &  G.  R.  Co.  V.  John.ston,  75  Ala.  596.  But  see  McCarthy  v.  Railroad 
Co.,  102  Ala.  193,  14  South.  370. 

831  Illinois  Cent.  R.  Co.  v.  Hall,  58  111.  409.  Or  other  appliances.  Lovelaud 
V.  Burke,  120  Mass.  139;   Ross  v.  Railroad  Co.,  49  Vt  364. 

832  Gleason  v.  Transportation  Co.,  32  Wis.  85;  South  &  N.  A.  R,  Co.  v. 
Henlein,  52  Ala.  606;  McBeath  v.  Railroad  Co.,  20  Mo.  App.  445.  See  Bryant 
V.  Railroad  Co.,  68  Ga.  805. 

883  Hutch.  Carr.  §  210  et  seq.;   Kohn  v.  Railroad  Co.,  37  S.  a  1,  16  S,  E.  376. 


368  CARRIERS    OF    GOODS.  [CI).   7 

fected  with  contagious  diseases,  are  seized  under  the  police  power, 
the  carrier  is  not  liable.^^*  It  is  sufficient  for  the  carrier's  protec- 
tion that  the  authority  was  de  facto,  if  not  de  jure,  the  paramount 
public  authority. ^^^  The  carrier  is  not  liable  for  goods  taken  from 
him  by  legal  process  fair  on  its  face.^^^  ''T\^hatever  may  be  a  car- 
rier's duty  to  resist  a  forcible  seizure  without  process,  he  cannot  be 
compelled  to  assume  that  regular  process  is  illegal,  and  to  accept 
all  the  consequences  of  resisting  officers  of  the  law.  If  he  is  excus- 
able for  yielding  to  a  public  enemy,  he  cannot  be  at  fault  for  yield- 
ing to  actual  authority  what  he  may  yield  to  usurped  authority."  ^^^ 

Inherent  Nature  of  Goods. 

Common  carriers  are  not  insurers  against  losses  caused  by  the  in- 
herent nature,  vice,  defect,  or  infirmity  of  the  goods.'^'  Thus,  car- 
riers are  not  liable  for  the  decay  of  fruit,  the  evaporation  or  leakage 

834  Wells  V.  Steamship  Co.,  4  Cliff.  228,  Fed.  Cas.  No.  17,401. 

835  Nashville  &  C.  R.  Co.  v.  Estes,  10  Lea,  749. 

836  Hutch.  Carr.  §  396  et  seq.;  Stiles  v.  Davis,  1  Black,  101;  Bliven  v.  Rail- 
road Co.,  36  N.  Y.  403;  Pingree  v.  Railroad  Co.,  66  jlich.  143.  33  N.  W.  298; 
Purman  v.  Railroad  Co.,  57  Iowa,  42,  10  N.  W.  272;  Id.,  62  Iowa,  395,  17  N. 
W.  598;  Id.,  08  Iowa,  219,  26  N.  W.  83;  Id.,  81  Iowa,  540,  46  N.  W.  1049.  Ohio 
&  M.  R.  Co.  V.  Yohe,  51  Ind.  181;  French  v.  Transportation  Co.,  134  Mass. 
288;  Jewett  v.  Olsen,  18  Or.  419,  23  Pac.  262;  The  Chase,  37  Fed.  708;  Sav- 
annah, G.  &  N.  A.  R.  Co.  V.  Wilcox,  48  Ga.  432.  But  see  Bingham  v.  Lamp- 
ing, 26  Pa.  St.  340;  McAlister  v.  Railroad  Co.,  74  Mo.  351;  Mierson  v.  Hope, 
2  Sweeny,  561.  The  remedy  of  tlie  owner  lor  au  illegal  seizure  of  his  goods 
for  the  debt  of  another  is  not  against  the  carrier,  but  against  the  officer  mak- 
ing the  seizure,  or  against  the  plaintiff,  if  he  directed  the  seizure.  Lawson, 
Bailm.  131;  Stiles  v.  Davis,  1  Black,  101.  But  it  has  been  held,  in  Massa- 
chusetts, that  the  carrier  is  not  excused  unless  tne  proceedings  be  against  the 
owner  of  the  goods.  Edwards  v.  Ti-ausit  Co.,  104  Mass.  159.  See.  also,  Bing- 
ham V.  Lamping,  26  Pa.  St.  340.  To  protect  the  carrier,  the  process  must  be  legal 
and  valid.  Edwards  v.  Transit  Co.,  104  Mass.  159;  Kiff  v.  Railroad  Co., 
117  Mass.  591;  Gibbons  v.  Farwell,  63  Mich.  344.  29  N.  W.  855;  Savannah, 
G.  &  N.  A.  R.  Co.  V.  Wilcox,  48  Ga.  432.  But  it  was  held  in  McAlister  v. 
Railroad  Co.,  74  Mo.  351,  that  a  regular  writ,  issued  under  a  statute  after- 
wards declared  unconstitutional,  was  sufficient  to  protect  the  carrier.  The 
carrier  is  liable  if  he  surrenders  to  an  officer  without  a  warrant.  Bennett  v. 
Express  Co.,  83  Me.  236,  22  Atl.  159. 

337  Per  Campbell,  C.  J.,  in  Pingree  v.  Railroad  Co.,  (HJ  Mich.  143,  33  N.  W. 
298. 
33  8  Story,  Bailm.  §  492a;    If&tch.  Carr.  §  216a. 


§§   81-82]       LIARIIJTY    FOR    LOSS    OR    DAMAGE AS    INSURERS.  369 

of  liquids,  and  the  like.^^^  Of  course,  if  the  carrior's  De;;li^^cDce  has 
^contributed  to  the__[oss^he  is  lialiLi-''^''  Care  must  be  exercised  with 
reference~to~the  naTui-e  o7  tlTdl^oods.  This  exception  from  liability 
rests  on  the  same  principle  as  the  act  of  God,  and,  indeed,  is  but  an 
illustration  of  it"^^  "Men  are  too  apt  to  hear  ( .  i  in  the  thunder 
and  storniL_and  ignore  his  existence  in  the  sriii,  sniiill  voice  of  ^]|e 
calm._  But  the  acts  of  God  are  not  always  cntnflysmSjppd  'n!ifm:il 
decay'  may  as  reasonably  be  classed  under  tliis  lKj.Ld  ii-a  'i<Mnpr.<in'  i^iy_ 
lightnings/  "  "^  However,  it  is  usual  {o  iKai  this  class  of  excep 
tions  separately. 

88  9  Beard  v.  Kailroad  Co.,  79  Iowa,  518,  44  N.  W.  800;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Levi,  76  Tex.  337,  13  S.  W.  191;  Cragin  v.  Railroad  Co.,  51  N.  Y. 
61;  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Bigger,  66  Miss.  319,  6  South.  234; 
Illinois  Cent.  R,  Co.  v.  Brelsford,  13  111.  App.  251;  The  Howard  v.  Wiss- 
man,  18  How.  231;  The  Collenberg,  1  Black,  170;  Swetland  v.  Kailroad  Co., 
102  Mass.  276;  Warden  v.  Greer,  6  Watts,  424;  Powell  v.  Mills,  37  Miss.  691; 
Evans  v.  Railroad  Co.,  Ill  Mass.  1-12.  roadios  wore  dolayril  1..  : 
_dina ry  f r eshetj^ayad ,  as  they  slmwcd  ^li-ns  cii  drcay,  the  ;.•!:■]•. 
for  the  best  attainable  price,  for  the  benefit  of  tlie  owner,  li  \v,i~~  held,  iu 
an  action  for  damages,  tli;it  the  carrier  was  ikjI  lialili-  i'  r  ilic  ;■--.  as  it  was 
owing  to  the  inherent  uualliii'--  :ir  ihr   rn'iuiii.   ili:>  ■  "t   iHiun,;  ;..  ^■■pL- 

another  route,  and  that  it  was  justihed  iu  ticilluji  the  prtiperix^  American 
J]xp.  cjo.  V.  Smith,  ;;:;  oiiio  si.  fill,  ol  Am.  Kep.  5G1,  and  note.  Where  pota- 
toes were  wet  when  shipped,  and  doca.ved  on  the  voyage,  the  carrier  is  not 
liable.  The  Howard  v.  Wissman,  18  How.  231.  See,  also.  The  Collenberg,  1 
Black,  170;  Brown  v.  Clayton,  12  Ga.  564.  Where  the  leakage  is  from  an 
inherent  defect  of  a  cask,  the  carrier  is  not  liable.  Hudson  v.  Baxendale,  2 
Hurl.  &  N.  575.  A  carrier  is  not  liable  for  loss  of  molasses  caused  by  its 
fermentation  and  expansion,  nor  for  leakage  from  secret  defects  In  the 
casks.  Warden  v.  Greer,  6  Watts,  424.  Where  the  bill  of  lading  recites  the 
receipt  in  good  condition,  leakage  will  not  account  for  a  loss  of  2,000  out  of 
10,000  gallons.    Id. 

8*0  Beard  v.  Railroad  Co.,  79  Iowa,  518,  44  N.  W.  800;  Harris  v.  Kailroad 
Co.,  20  N.  Y.  232;  Ohio  &  M.  R.  Co.  v.  Duubar,  20  111.  624;  Welch  v.  Rail- 
road Co.,  10  Ohio  St.  65;  Powell  v.  Railroad  Co.,  32  Pa.  St  414;  Smith  v. 
Railroad  Co.,  12  Allen,  531;  Conger  v.  Railroad  Co.,  6  Duer  (N.  1'.)  375.  As 
to  whether  a  carrier  may  or  must  give  perisliable  property  precedence  in 
transportation,  see  Swetland  v.  Railroad  Co.,  102  Mass.  276;  i'eet  v.  Rail- 
road Co.,  20  Wis.  594;  Tierney  v.  Railroad  Co.,  76  N.  1.  305;  MarshaU  v. 
Railroad  Co.,  45  Barb.  502. 

841  Hutch.  Carr.  §  216a;   Browne,  Carr.  102. 

842  Wood,  Browne,  Carr.  §  106.  CjiO^-   "^^-^vfiL^      T^^  I  f 

LAWBAILM.— 24  


370  CARRIERS    OF    GOODS.  [Ch.   7 

83.  CARRIERS  OF  LIVE  STOCK— Carriers  of  live  stock 
are  common  carriers  -wrhenever  carriers  of  other 
goods  ■would  be.  But  they  are  not  liable,  in  the  ab- 
sence of  negligence,  for  such  injuries  as  occur  in 
consequence  of  the  vitality  of  the  freight. 

The  question  as  to  whether  the  common-law  rule  as  to  the  liability 
of  common  carriers  should  be  extended  so  as  to  include  carriers  of 
live  animals  has  been  much  discussed,  and  is  one  upon  which  there 
is  a  conflict  of  opinion.  The  question  is  an  important  one,  as  it  af- 
fects the  burden  of  proof  in  cases  where  damages  are  claimed  for 
loss  or  injury.^**  If  the  defendant  is  not  liable  as  a  common  carrier, 
the  burden  of  proof  is  on  the  plaintiff  to  show  that  the  loss  was  caused 
by  the  carrier's  negligence.  If  the  defendant  is  liable  as  a  common 
carrier,  the  burden  is  on  him,  if  he  would  excuse  himself,  to  show  that 
the  loss  was  caused  by  an  excepted  peril,  and  without  his  negligence. 
The  decision  of  the  question  also  aft'ects  the  obligation  of  the  carrier 
to  carry  for  all  who  offer.  The  contention  has  been  principally  in 
regard  to  railway  companies.  Other  carriers  are  common  carriers 
only  of  the  goods  and  on  the  terms  they  profess  to  carry,  which  are 
easily  ascertained.  Railroad  companies  are  created  common  carriers 
by  their  organic  act,  and  the  only  question,  in  a  given  case,  is  whether 
they  are  common  carriers  of  the  particular  thing  in  question. 

The  case  of  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough  3**  is  a 
leading  case  in  suppori:  of  the  view  that  railroad  companies  are 
not  common  carriers  of  live  stock. ^*^     In  that  case  it  was  said:     "For 

843  Kansas  I'ac.  R.  Co.  v.  Reynolds,  8  Kan.  623. 

344  21  Mich.  165.  See,  also,  Lake  Shore  &  M.  S.  R.  Ck).  v.  Perkins,  25  Mich. 
329. 

84B  Louisville,  C.  &  L.  R.  Co.  v.  Hedger,  9  Bush  (Ky.)  G45;  Baker  v.  Rail- 
road Co.,  10  Lea,  304.  "In  Michigan,  since  April,  1870,  railroads  have  not 
been  public  purposes  or  public  uses,  in  the  sense  that  they  are  such  in  other 
states  of  the  Union.  In  that  state  they  are  purely  and  strictly  private  pur- 
poses or  uses.  People  v.  Salem,  20  Mich.  452,  475,  480,  485.  The  supreme 
eourt  of  that  state  say  that  'they  [railroad  companies]  are  public  agents  In 
the  same  sense  that  the  proprietors  of  any  other  kind  of  private  business 
are,  and  not  in  any  other  or  different  sense.'  'Our  policy  in  that  respect,' 
say   the  court,  'has   changed.     Railroads  are  no  longer  public   works,    but 


§    83]  LIAHILITY    AS    INSURERS    OF    LIVE    STOCK.  371 

the  purposes  of  this  case,  it  may  be  assumed  that  this  company,  by 
their  charter  and  act  of  consolidation,  are  required  to  take  upon  them- 
selves the  business  of  common  carriers,  and  to  transport,  as  audi,  all 
such  property  tendered  to  them  for  that  pur^jose  as  was  usually 
transported  by  railroads  as  common  carriers  at  the  date  of  the  charter 
of  the  Michigan  Southern  Railroad  Company,  in  1846,  and  any  other 
kinds  of  property  which,  in  the  progress  of  invention  and  business, 
might  be  tendered  for  such  carriage,  which  should  not,  from  its 
nature,  impose  risks  of  a  different  character,  or  require  an  essentially 
different  mode  of  managing  their  road  or  the  incurring  of  extra  ex- 
penses on  account  of  the  different  character  of  such  new  kinds  of 
property.  But  the  transportation  of  cattle  and  live  stock  by  common 
carriers  by  land  was  unknow^n  to  the  common  law  when  the  duties 
and  responsibilities  of  common  carriers  w^ere  fixed,  making  them  in- 
surers against  all  losses  a;id  injuries  not  arising  from  the  act  of  God 
or  of  the  public  enemies.  These  responsibilities  and  duties  were  flxeU 
with  reference  to  kinds  of  property  involving  in  their  transportation 
much  fewer  risks  and  of  quite  a  different  kind  from  those  which  are 
incident  to  the  transportation  of  live  stock  by  railroad.  Animals 
have  wants  of  their  own  to  be  supplied,  and  this  is  a  mode  of  con- 
veyance at  which,  from  their  nature  and  habits,  most  animals  in- 
stinctively revolt;  and  cattle,  especially,  crowded  in  a  dense  mass, 
frightened  by  the  noise  of  the  engine,  the  rattling,  jolting,  and  fre- 
quent concussions  of  the  cars,  in  their  frenzy,  injure  each  other  bv 
trampling,  plunging,  goring,  or  throwing  down,  and  frequently,  on 
long  routes,  their  strength  exhausted  by  hunger  and  thirst,  fatigue 

are  private  property.'  Railroads  are  private,  according  to  that  decision,  lu 
the  same  sense  that  tlie  different  luiids  of  business  of  baclimea,  draymen, 
proprietors  of  stagecoaches,  merchants,  newspaper  proprietors,  pliysiciaus, 
manufacturers,  mechanics,  hotel  lieepers,  millers,  etc.,  are  private.  Hall- 
roads,  in  Michigan,  seem,  from  that  decision,  to  be  such  private  corporations 
as  are  described  in  the  case  of  Leavenworth  Co.  v.  Miller,  7  Kan.  479,  5114, 
b:^5.  If  they  are  such  private  corporations  as  there  described,  of  course  they 
have  a  right  to  be  common  carriers  of  just  such  property  as  they  choose,  uo 
more  and  no  less."  Kansas  Pac.  R.  Co.  v.  Nichols,  'J  Kan.  1:35.  Accord- 
ingly, in  Michigan,  railroad  companies  caunot  be  compellea  to  receive  live 
stock,  nor  be  held  responsible  for  it  as  common  carriers,  unless  they  have 
voluntarily  assumed  that  character.  Mi(  liiKau  S.  &  N.  I.  R.  Co.  v.  McDon- 
ough,  21  Mich.  1G5;  Lake  Shore  &  M.  S.  K.  Co.  v.  Perkins,  25  Mich.  321). 


372  CARRIERS    OF    GOODS.  [Ch.  7 

and  fright,  tlie  weak  easily  fall,  and  are  trampled  upon,  and,  unless 
helped  up,  must  soon  die.  Hogs  also  swelter  and  perish.^**  It  is  a 
mode  of  transportation  which,  but  for  its  necessity,  would  be  gross 
cruelty,  and  indictable  as  such  The  risk  may  be  greatly  lessened  by 
care  and  vigilance,  by  feeding  and  watering  at  proper  intervals,  by 
getting  up  those  that  are  down,  and  otherwise.  But  this  imposes  a 
degi'ee  of  care  and  an  amount  of  labor  so  different  from  what  is  re- 
quired in  reference  to  other  kinds  of  property  that  I  do  not  think 
this  kind  of  property  falls  within  the  reasons  upon  which  the  com- 
mon-law liability  of  common  carriers  was  fixed."  ^■'^ 

The  case  of  Kansas  Pac.  Ry.  Co.  v.  Nichols  ^**  is  a  leading  case 
in  support  of  the  opposite  view.  In  that  case  the  court  said :  "That 
railroads  are  created  common  carriers  of  some  kind,  we  believe  is 
the  universal  doctrine  of  all  the  courts.  The  main  question  is  al- 
ways whether  they  are  common  carriers  of  the  particular  thing  then 
under  consideration.  The  question  in  this  case  is  whether  they  are 
common  carriers  of  cattle.  So  far  as  our  statutes  are  concerned, 
no  distinction  is  made  between  the  carrying  of  cattle  and  that  of 
any  other  kind  of  property.     Under  our  statutes  a  railroad  may  as 

3*8  See  per  Parke,  B.,  in  Carr  v.  Railroad  Co.,  7  Exch.  707,  712;  Uenio,  O. 
J.,  in  Clarke  v.  Railroad  Co.,  14  N.  Y.  570,  573. 

847  "It  is  claimed  there  is  a  dif&erence  betwoen  live  stock  and  other  prop- 
erty as  to  the  responsibility  assumed  by  a  carrier  in  its  transportation;  that 
the  voluntary  motion  of  the  stock  introduces  an  element  of  danger  into  the 
transportation  against  which  neither  reason  nor  authority  require  that  the 
carrier  insure;  that,  Inasmuch  as  it  is  customary  that  the  shipper,  or  some 
one  for  him,  accompany  the  stock,  there  is  only  a  qualified  or  partial  delivery 
to  the  carrier;  and  also  that  proof  that  a  railroad  company  has  suitable  cars, 
and  is  engaged  in  the  business  of  carrying  cattle,  is  not  proof  that  it  is  a 
common  carrier  as  to  such  cattle,  because,  to  insure  their  safe  transporta- 
tion, requires  yards  and  stables,  with  conveniences  for  feeding,  both  at  the 
termini  and  along  the  route,  as  well  as  a  corps  of  experienced  stockmen  to 
take  care  of  them  in  the  transit.  These  last,  as  it  seems  to  us,  are  duties  in- 
cident to  the  employment,  and  not  elements  to  determine  its  character.  En- 
gaging in  the  business  of  transporting  cuttle,  it  becomes  a  duty  to  provide 
exery  suitable  facility  therefor.  Not  the  manner  of  doing  the  work,  but  the 
fact  of  engaging  in  the  business,  is  the  test  laid  down  in  the  books  for  de- 
termining the  character  of  the  carrier."  Kansas  Pac.  Ry.  Co.  v.  Reynolds,. 
8  Kan.  623. 

a«8  9  Kan.  235. 


§   83]  LIABILITY    AS    INSURERS    OF    LIVE    STOCK.  373 

well  be  a  common  carrier  of  cattle  as  of  goods,  wares,  and  merchan- 
dise, or  of  any  other  kind  of  property.  Now,  as  no  distinction  has 
been  made  by  statute  between  the  carrying  of  the  dilTcront  kinds  of 
property,  we  would  infer  that  railroads  were  created  for  the  pur- 
pose of  being  common  carriers  of  all  kinds  of  property  which  the 
wants  or  needs  of  the  public  require  to  be  carried,  and  which  can  be 
carried  by  railroads,  and  particularly  we  would  infer  that  railroads 
were  created  for  the  purpose  of  being  common  carriers  of  cattle. 
*  *  *  It  is  claimed,  however,  that  'the  transportation  of  cattle 
and  live-stock  by  common  carriers  by  land  was  unknown  to  the 
common  law,'  Suppose  it  was;  what  does  that  prove?  The  trans- 
portation of  thousands  of  other  kinds  of  property,  either  by  land  or 
water,  was  unknown  to  the  common  law,  and  yet  such  kinds  of 
property  are  now  carried  by  common  carriers  and  by  railroads  every 
day.  *  ♦  »  The  reason  why  cattle  and  live  stock  were  not  trans- 
ported by  land  by  common  carriers,  at  common  law.  was  because 
no  common  carrier,  at  the  time  our  common  law  was  formed,  had 
any  convenient  means  for  such  transportation.  Among  the  other 
kinds  of  property  not  transported  by  common  carriers,  either  by 
land  or  water,  at  the  time  our  common  law  was  formed,  are  the  fol- 
lowing: Reapers,  mowers,  wheat  drills,  corn  planters,  cultivators, 
threshing  machines,  corn  shellers,  gypsum,  guano,  Indian  corn,  po- 
tatoes, tobacco,  stoves,  steam  engines,  sewing  machines,  washing  ma- 
chines, pianos,  reed  organs,  fire  and  burglar  proof  safes,  etc.;  and  yet 
no  one  would  now  contend  that  railroads  are  not  common  carriers 
of  these  kinds  of  articles.  At  common  law  the  character  of  the 
carrier  was  never  determined  by  the  kind  of  property  that  he  car- 
ried. *  *  *  At  common  law  no  person  was  a  common  carrier  of 
any  article  unless  he  chose  to  be,  and  unless  he  held  himself  out  as 
such;  and  he  was  a  common  carrier  of  just  such  articles  as  he  chose 
to  be,  and  no  others.  If  he  held  himself  out  as  a  common  carrier  of 
silks  and  laces,  the  common  law  would  not  compel  him  to  be  a  com- 
mon carrier  of  agricultural  implements,  such  as  plows,  harrows,  etc. 
K  he  held  himself  out  as  a  common  carrier  of  confectionery  and  spi- 
ces, the  common  law  would  not  compel  him  to  be  a  common  carrier 
of  bacon,  lard,  and  molasses.'*^     And  it  seems  to  us  clearly,  be 

348*Tunnel  v.  Pettijohn,  2  Har.  (Del.)  48. 


374  CARBIEKS    OF   GOODS.  [Ch.  7 

yond  all  doubt,  that  if  any  person  had,  in  England,  prior  to  the  year 
1607,  held  himself  out  as  a  common  carrier  of  cattle  and  live  stock 
by  land,  the  common  law  would  have  made  him  such.  If  so,  where 
is  the  valid  distinction  that  is  attempted  to  be  made  between  the 
carrying  of  live  stock  and  the  carrying  of  any  other  kind  of  per- 
sonal property?  The  common  law  never  declared  that  certain  kinds 
of  property  only  could  be  carried  by  common  carriers,  but  it  per- 
mitted all  kinds  of  personal  property  to  be  so  carried.  At  com- 
mon law  any  person  could  be  a  common  carrier  of  all  kinds  or  any 
kind  and  of  just  such  kinds  of  personal  property  as  he  chose;  no 
more,  nor  less.  Of  course,  it  is  well  known  that,  at  the  time  when 
our  common  law  had  its  origin, — that  is,  prior  to  the  year  1607, — 
railroads  had  no  existence.  But  when  they  came  into  existence  it 
must  be  admitted  that  they  would  be  governed  by  the  same  rules, 
so  far  as  applicable,  which  govern  other  carriers  of  property.  There- 
fore it  must  be  admitted  that  railroads  might  be  created  for  the 
purpose  of  carrying  one  kind  of  property  only,  or  for  carrying  many 
kinds,  or  for  carrying  all  kinds  of  property  which  can  be  carried 
by  railroads,  including  cattle,  live  stock,  etc.  In  this  state  it  must 
be  presumed  that  they  were  created  for  the  purpose  of  carrying  all 
kinds  of  personal  property.  It  can  hardly  be  supposed  that  they 
were  created  simply  for  the  purpose  of  being  carriers  of  such  arti- 
cles only  as  were  carried  by  common  carriers  under  the  common 
law  prior  to  the  year  1007;  for,  if  such  were  the  case,  they  would 
be  carriers  of  but  very  few  of  the  innumerable  articles  that  are  now 
actually  carried  by  railroad  companies.  And  it  can  hardly  be  sup- 
posed that  they  were  created  for  the  mere  purpose  of  taking  the 
place  of  pack  horses,  or  clumsy  wagons,  often  drawn  by  oxen,  or 
such  other  primitive  means  of  carriage  and  transportation  as  were 
used  in  England  prior  to  that  year.  Railroads  are  undoubtedly  cre- 
ated for  the  purpose  of  carrying  all  kinds  of  property  which  the 
common  law  would  have  permitted  to  be  carried  by  common  car- 
riers in  any  mode,  either  by  land  or  water,  which  probably  includes 
all  kinds  of  personal  property.  Our  decision,  then,  upon  this  ques- 
tion, is  that,  whenever  a  railroad  company  receives  cattle  or  live 
stock  to  be  transported  over  their  road  from  one  place  to  another, 
such  company  assumes  all  the  responsibilities  of  a  common  carrier, 
except  so  far  as  such  responsibilities  may  be  modified  by  special 


§    83]  LIABILITY    AS    INSURERS    OF    LIVE    STOCK.  876 

contract."  The  weight  of  authority  supports  the  view  that  carriers 
of  live  stock  are  common  carriers,  and  liable  as  such  whenever  a  car- 
rier of  other  freight  would  be.^"^" 

Inherent  Vice,  Disease,  or  Condition  of  Animals. 

While  carriers  of  live  stock  are  liable  as  insurers,  just  as  carriers 
of  other  freight  are,  this  absolute  liability  is  subject  to  the  same  ex- 
ceptions recognized  in  the  case  of  ordinary  freight.  If  live  stock  are 
injured  by  the  act  of  God,  the  public  enemy,  the  act  of  the  shipper, 
public  authority,  or  their  inherent  nature,  the  carrier,  if  guilty  of  no 
negligence,  is  not  liable.  The  carrier's  liability  is  especially  contin- 
gent upon  the  inherent  vice,  disease,  or  condition  of  the  animals 
shipped.  By  the  expression  "vice"  is  meant  that  sort  of  vice  which, 
by  its  internal  development,  tends  to  the  destruction  or  injury  of  tlu- 
animal  or  thing  to  be  carried.^ ''^  In  the  transportation^ of  live  stack, 
in  the  absence  of  negligence,  the  carrier  is  relieved  from  respi)nsibiliiy 
for  such  injuries  as  occur  in  consequence  of  the  vitality  of  the 
freight.^"^     He  does  not  absolutely  warrant  live  freight  against  the 

SE0  2  Jag.  Torts,  p.  1073;  Mayuard  v.  Railroad  Co.,  71  N.  1'.  ISO;  Cragiu  v. 
Railroad  Co.,  51  N.  Y.  61;  Penn  v.  Railroad  Co.,  41)  N.  Y.  204;  Couger  v.  Rail- 
road Co.,  6  Duer  (N,  Y.)  375;  Clarke  v.  Railroad  Co.,  14  N.  i'.  57U;  Ilarris  v. 
Railroad  Co.,  20  N.  Y.  232;  St.  Louis  &,  S.  E.  Ry.  Co.  v.  Doruiau,  72  111.  504; 
Ohio  &  M.  R.  Co.  v.  Dunbar,  20  111.  G24;  Cbicago,  R.  1.  &  P.  U.  Co.  v.  Har- 
mon, 12  111.  App.  54;  Ayres  v.  Railroad  Co.,  71  Wis.  372,  37  N.  W.  432;  Evaus 
V.  Railroad  Co.,  Ill  Mass.  142;  Rixford  v.  Smith,  52  N.  H.  355;  Kinuick  v. 
Railroad  Co.,  69  Iowa,  605,  29  N.  W.  772;  McCoy,  v.  Railroad  Co.,  44  Iowa, 
424;  German  v.  Railroad  Co.,  38  Iowa,  127;  Powell  v.  Railroad  Co.,  32  Pa. 
St.  414;  Atchison  &  N.  R.  Co.  v.  Washburn,  5  Neb.  117;  Portorfn'M  v.  ITunii'h- 
reys,  8  Humph.  497;  Wilson  v.  Hamilton,  4  Ohio  St  722;  Welsh  v.  Railroad 
Co.,  10  Ohio  St.  65;  South  &  N.  A.  R.  Co.  v.  Henlein,  52  Ala.  UUG;  Kimball  v. 
Railroad  Co.,  26  Vt.  247;  Moulton  v.  Railway  Co..  31  Minn.  85,  16  N.  W.  497; 
Agnew  V.  The  Contra  Costa,  27  Cal.  425;  Liudsley  v.  Railway  Co.,  36  .Minn. 
539.  33  N.  W.  7;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  CW  Tex.  314.  5  S.  W. 
567;  Michigan  Cent.  R.  Co.  v.  Myrick,  1  Sup.  Ct.  425;  Brown  v.  Railroad  Co., 
18  Mo.  App.  569;   McFadden  v.  Railroad  Co.,  92  Mo.  343,  4  S.  W.  689. 

3  51  Blower  v.  Railroad  Co.,  L.  R.  7  C.  P.  655. 

8  82  Richardson  v.  Railroad  Co.,  61  Wis.  596.  21  N.  W  .  49;  Illinois  Cent.  H. 
Co.  V,  Scruggs,  69  Miss.  418,  13  South.  698:  Louisville.  N.  O.  A:  T.  Ry.  Co.  v. 
Bigger,  66  Miss.  319,  6  South.  234;  Smith  v.  Railroad  Co.,  12  Allen.  531; 
Penn  v.  Railroad  Co.,  49  N.  Y.  204.  Where  the  carrier  has  used  due  care,  and 
provided  a  suitable  car,  and  the  injuries  were  caused  by  the  peculiar  charao- 


376  CARRIERS    OF   GOODS.  [Ch.  7 

consequences  of  its  own  vitality.  Animals  may  injure  or  destroy 
themselves  or  each  other.  They  may  die  from  fright,  or  from  starva- 
tion because  they  refuse  to  eat,  or  they  may  die  from  heat  or  cold. 
In  all  such  cases  the  carrier  is  relieved  from  responsibility  if  he  can 
show  that  he  has  provided  all  suitable  means  of  transportation,  and 

ter  and  propensities  of  the  horse,  such  as  fright  and  bad  temper,  the  carrier 
is  not  liable.  Evans  v.  Railroad  Co.,  Ill  Mass.  142.  It  is  the  duty  of  the 
owner,  delivering  property  to  a  carrier  which  he  knows  requires  peculiar  care 
in  Its  safe  transportation,  to  make  known  the  necessity  in  order  that  the 
propver  precaution  may  be  used.  Wilson  v.  Hamilton,  4  Ohio  St.  71i2.  In 
Clarke  v.  Railroad  Co.,  14  N.  Y.  570,  it  was  held  that  common  carriers  of  cat- 
tle are  liable,  not  only  for  a  safe  and  careful  conveyance  of  the  car  con- 
taining them,  but  also  for  any  injury  which  can  be  prevented  by  foresight, 
vigilance,  and  care,  although  arising  from  the  conduct  of  the  animal,  and 
they  are  not  relieved  of  this  responsibility  by  the  fact  that  the  owner  of  the 
cattle  was  present,  and  aided  in  loading  them,  and  was  allowed  a  passage  for 
himself  In  the  train  which  carried  the  cattle.  See,  also,  Rixford  v.  Smith, 
52  N.  H.  355;  Goldey  v.  Railroad  Co.,  30  Pa.  St.  242;  McDaniel  v.  Railroad 
Co.,  24  Iowa,  412.  The  carrier  is  not  relieved  from  his  liability  merely  be- 
cause delay,  which  occasions  damage  to  the  property,  is  the  result  of  an  un- 
avoidable accident,  but  is  bound,  notwithstanding  the  accident,  to  use  the 
highest  degree  of  care  during  the  delay  for  the  safety  of  the  deposit.  Kin- 
nick  V.  Railroad  Co.,  69  Iowa,  665,  29  N.  W.  772.  Where  there  is  no  mis- 
representation or  deceit  on  the  part  of  the  shipper  of  live  stock,  a  common 
carrier  waives  all  exceptions  to  the  defects  in  loading  by  accepting  stock  so 
loaded  for  transportation,  and  assumes  all  the  liabilities  of  a  common  car- 
rier with  reference  to  the  property.  Id.  "No  doubt  the  horse  was  the  im- 
mediate cause  of  its  own  Injuries,  I.  e.  no  person  got  into  the  box  and  injured 
it.  It  slipped,  or  fell,  or  kicked,  or  plunged,  or  in  some  way  hurt  itself.  If 
It  did  so  from  no  cause  other  than  its  inherent  propensities,  its  proper  vice, 
—that  is,  from  fright,  or  temper,  or  struggling  to  keep  its  legs,— the  defend- 
ants are  not  liable.  But,  if  it  so  hurt  Itself  from  the  defendants'  negligence, 
or  any  misfortune  happening  to  the  train,  though  not  through  any  negli- 
gence of  the  defendants  (as,  for  instance,  from  the  horse  box  leaving  the 
line,  through  some  obstruction  maliciously  laid  upon  It),  then  the  defend- 
ants, as  Insurers,  would  be  liable.  If  perishable  articles,  say  soft  fruits, 
are  damaged  by  their  own  weight  and  the  inevitable  shaking  of  the  car- 
riage, they  are  injured  through  their  own  Intrinsic  qualities.  If,  through 
pressure  of  other  goods  cai*ried  with  them,  or  by  an  extraordinai*y  shock  or 
shaking,  whether  through  negligence  or  not,  the  carrier  is  liable."  Kendall 
V.  Railway,  L.  R.  7  Exch.  373.  A  railroad  company  is  not  responsible  for 
Injuries  Inflicted  upon  one  horse  by  another  while  they  were  being  carried  in 
the  company's  car.  If  the  Injuries  were  caused  by  the  fault  or  neglect  of  the 


§    84]  LIABILITY    AS    INSURERS    OF    BAGGAGE.  377 

exercised  that  degree  of  care  which  the  nature  of  the  property  re- 
quires.'" 

84.  CABRTERS  OF  B A GKJ AGE— Carriers  of  passengers 
are  bound  to  also  carry  the  passengers'  reasonable 
baggage,  and  are  liable,  as  common  carriers,  for  its 
safe  delivei'y. 

Passengers  traveling  in  public  conveyances  have  a  right  to  have  a 
reasonable  amount  of  baggage  carried  with  them  without  extra 
charge.^^*  The  obligation  to  carry  his  baggage  is  incidental  to  the 
contract  to  carry  tlie  passenger.  The  fare  paid  is  compensation  foi- 
the  carriage  of  both.^^''     The  carrier,  however,  is  obliged  to  receive 

owner  of  the  horses,  in  attaching  their  halters,  or  not  removing  their  shoes. 
Evans  v.  Railroad  Co.,  Ill  Mass.  142.  A  shipper  must  disclose  peculiarities 
affecting  the  risk  (Wilson  v.  Hamilton,  4  Ohio  St.  722;  Missouri  Fae.  R.  Go. 
V.  Fagan  [Tex.  Civ.  App.J  27  S.  W.  887),  but  need  not  disclose  facts  apparent 
to  observation  (McCune  v.  Railroad  Co.,  52  Iowa,  GOO,  3  N.  W.  G15;  Estill  v. 
Railroad  Co.,  41  Fed.  849).  A  carrier  of  live  stock  cannot  stipulate  for  ex- 
emption from  liability  for  his  own  negligence.  Mouiton  v.  Railway  Co.,  HI 
Minn.  85,  16  N.  W.  497;  Kansas  City,  St.  J.  &;  C.  B.  R.  Co.  v.  Simpson.  30 
Kan.  645,  2  Pac.  821. 

353  Cragin  v.  Railroad  Co.,  51  N.  Y.  61;  Giblin  v.  Steamship  Co.,  8  Misc. 
Rep.  22,  28  N.  Y.  Supp.  69;  Annstrong  v.  Express  Co.,  159  Pa.  St  640,  28  Atl 
448. 

S64  It  was  at  first  held  that  carriers  were  not  liable  for  the  traveler's  bag- 
gage unless  a  distinct  price  had  been  paid,  on  the  ground  that  the  carrier  is 
liable  only  in  respect  to  his  reward,  and  that  the  compensation  should  be  in 
proportion  to  the  risk.  Middleton  v.  Fowler,  1  Salk.  282.  Subsequently,  by 
common  usage,  a  reasonable  amount  of  baggage  was  deemed  to  be  included 
with  the  fare  of  the  passenger;  but  the  courts  should  not  allow  this  custom 
to  be  abused,  and,  under  pretense  of  baggage,  include  articles  not  with- 
in the  scope  of  the  term,  or  intent  of  the  parties,  thereby  defrauding  the 
carrier  of  his  just  compensation,  besides  subjecting  him  to  unknown  haz- 
ards. Pardee  v.  Drew,  25  Wend.  459;  Bank  v.  Brown,  9  Wend.  85.  Thf 
traveling  public  have  the  right  to  stop  and  receive  their  baggage  at  any  regu- 
lar station  or  stopping  place  for  the  train  on  which  they  may  be  traveling, 
and  any  regulation  that  deprives  them  of  that  right  is  necessarily  arbitrary, 
unreasonable,  and  illegal.  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Lyon,  123  Pa. 
St  140.  16  Atl.  607. 

3BB  Orange  Co.  Bank  v.  Brown,  9  Wend.  85;  HoUister  v.  Nowlen,  19  Wend. 
234;   Cole  v.  Goodwin,  19  Wend.  251.      A  carrier  is  liable  for  the  loss  of  the 


^ 


378  CARKIERS    OF    GOODS.  [Ch.   7 

only  a  reasonable  amount  of  baggage,  though  he  is  liable  for  any 
amount  received,  in  the  absence  of  a  contract  or  statutory  limita- 
tion."'' In  the  carriage  of  baggage  the  carrier  is  liable  as  a  com- 
mon carrier.'"^  Kj^  however,  the  passenger  is  carried  fregj^"^  or_il 
the  baggage  ia.  not  really  baggage,  withjn  Jbelg^aJ  meaning  of , the 
term,"*  the  carrier  is  liable  merely  as  a  gratuitpus  bailee. 

What  is  Baggage. 

"Baggage"  signifies  such  articles  of  convenience  or  necessity  as  are 
carried  by  a  passenger  for  his  personal  use,  either  during  the  jour- 
ney, or  during  his  stay  at  the  place  of  destination,  and  which  are  fit 
and  proper  for  the  personal  use  of  persons  in  the  same  condition  of 
life.*®°  Other  definitions  are  as  follows:  "Only  such  articles  as  a 
traveler  usually  carries  with  him  for  his  comfort  or  convenience,  both 

luggage  of  a  passenger  whose  fare  was  paid  by  another.  The  fare  paid  by  a 
passenger  to  a  carrier  includes  transportation  of  his  baggage,  and  the  car- 
rier has  a  lien  thereon  for  the  fare,  and  may  detain  the  same  until  payment 
thereof.    Roberts  v.  Koehler,  30  Fed.  94. 

366  Lawson,  Bailm.  §  270;  New  York  Cent.  .&  H.  R.  R,  Co.  v.  Fraloff.  100 
U.  S.  24;  Men-ill  v.  Grinnell,  30  N.  Y.  594.  "Where  the  carrier  has  notitieci 
the  passenger  that  he  will  not  be  liable  for  baggage  beyond  a  certain  sum 
unless  the  true  value  is  stated,  the  carrier  will  be  discharged  from  his  ex- 
tiuordinaiy  liabiUty  if  the  passenger  either  refuses  to  disclose  the  value,  or 
fails  to  do  so,  or  by  any  artifice  evades  inquiry  as  to  its  true  value.  New 
York  Cent.  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24.  But  where  the  carrier 
makes  no  such  inquiry,  and  the  passenger  does  not,  by  any  act  or  artifice  of 
his,  mislead  the  can-ier  as  to  the  true  value  of  the  package,  his  mere  failure 
to  disclose  it  is  not  such  a  fraud  on  the  carrier  as  will  release  him  from 
liability.  New  York  Cent.  &  H.  II.  R.  Co.  v.  Fraloff^  100  U.  S.  24;  Lawson, 
Bailm.  §  276.  And  see  Brown  v.  Railroad  Co.,  S3  Pa.  St.  316.  If  any  means 
have  been  used  to  conceal  the  value  of  a  package,  the  carrier  is  not  liable, 
whether  he  has  given  notice  or  not.  Orange  Co.  Bank  v.  Brown,  9  Wend. 
85.  Notifying  the  carrier  that  it  is  "a  trunk  of  importance,"  is  not  sufficient. 
In  such  a  case,  to  charge  him  with  knowledge  of  its  value.    Id. 

307  Hollister  v.  Nowlen,  19  Wend.  234.  But  not  as  to  the  person  of  the 
traveler.  Boyce  v.  Anderson,  2  Pet.  150;  Christie  v.  Griggs,  2  Camp.  7!). 
Carriers  are  liable  for  the  loss  of  baggage  by  theft,  even  when  shipped  aa 
freight  The  State  of  New  York,  7  Ben.  450,  Fed.  Cas.  No.  13,328;  Walsh  v. 
The  H.  M.  Wright,  Newb.  494,  Fed.  Cas.  No.  17,115. 

8  68  Flint  &  P.  M.  Ry.  Co.  v.  Weir,  37  Mich.  111. 

868  See  post,  p.  384. 

S60  $10,000  worth  of  lace  is  proper  baggage  for  a  Russian  lady  of  wealth 


§    SI]  LIABILITY    AS    INSURERS    OF    BAGGAGE.  379 

during  the  joiiraey  and  during  his  stay  at  the  place  of  his  destina- 
tion." ^'^  "All  articles  which  it  is  usual  for  persons  traveling  to 
carry  with  them,  whether  from  necessity,  or  for  convenience  or  amuse- 
ment." '°^  "Such  articles  of  personal  convenience  or  necessity  as  are 
usually  carried  by  passengers  for  their  personal  use,  and  not  merchan- 
dise and  other  valuables."  ^^^     Mr.  Lawson's  elaborate  definition  is 

traveling  for  pleasure.  Fraloff  v.  Railroad  Co.,  10  Blatchf.  IG,  Fed.  Ca.s.  .No. 
5,025;  Id.,  100  U.  S.  24.  Six  dozen  shirts  is  proper  baggage  for  a  Genua n 
gentleman,  it  being  customary  in  Germany  to  keep  on  hand  large  quantities 
of  linen,  for  the  reason  that  washing  is  done  less  frequently  in  that  country 
than  in  America.  Merrill  v.  Griuuell,  30  N.  Y.  51)4,  G13.  See,  also.  Coward 
V.  Railroad  Co.,  IG  Lea,  225.  Bedding  is  proper  baggage  for  a  poor  man 
traveling  with  his  family.  Ouimit  v.  Henshaw,  35  Vt.  G05.  See,  also. 
Hirschsohn  v.  Packet  Co.,  34  N.  Y.  Super.  Ct  521;  Glovinsky  v.  Steamshij) 
Co..  4  Misc.  Rep.  2GG,  24  N.  Y.  Supp.  13G.  But  see  Connolly  v.  Warren.  lOG 
Mass.  146.  Mr.  Hutchinson  thinks  that  Ouimit  v.  Henshaw,  supra,  and  I'ar- 
melee  v.  Fischer,  22  111.  212,  leave  scarcely  any  limit  to  what  may  be  re- 
garded as  a  passenger's  baggage.  Hutch.  Carr.  §  6S4.  A  carrier  may  refuse 
to  carry  merchandise  as  personal  baggage,  or  anything  except  what  Is  use- 
ful and  necessary,  or  useful  for  the  passenger's  personal  comfort  and  con- 
venience. Collins  V.  Railroad  Co.,  10  Cush.  (Mass.)  5UG;  Smith  v.  Railroad 
Co.,  44  N.  H.  325.  It  follows  that  the  carrier  may  require  information  as 
to  value  and  kind  as  a  condition  precedent  to  the  transportation  of  articles- 
offered  as  baggage.  Norfolk  &  W.  R.  Co.  v.  Irvine,  84  Va.  553,  5  S.  K.  ai2; 
Id.,  85  Va.  217,  7  S.  E.  233;  New  York  Cent.  &  U.  R.  R.  Co.  v.  Fraloff,  lUO  U. 
S.  24. 

301  Wood,   Ry.  Law,  §  40L 

862  Ang.  Carr.  §  115. 

888  Hutch.  Carr.  §  679.  This  definition  is  substantially  Judge  Story's. 
Story,  Bailm.  §  499.  Of  the  latter  doliuition  it  was  said,  in  Dibble  v.  Brown, 
12  Ga.  217,  226:  "When  we  settle  down,  with  Judge  Story,  upon  the  propo- 
sition that  by  baggage  is  to  be  understood  'such  articles  of  necessity  or  per- 
sonal convenience  as  are  usually  carried  by  passengers,  for  their  personal 
use,'  we  are  still  without  a  rule  for  determining  what  articles  are  Included 
in  baggage.  For  such  things  as  would  be  necessary  to  one  man  wmild  not 
be  necessary  to  another.  Articles  which  would  be  held  but  ordinary  con- 
veniences by  A.  might  be  considered  incumbrances  by  B.  One  man,  from 
choice  or  habit,  or  from  educational  incapacity  to  appreciate  the  comforts 
or  conveniences  of  life,  needs,  perhaps,  a  portmanteau,  a  change  of  linen, 
and  an  indifferent  razor;  while  another,  from  habit,  position,  and  odncation. 
is  unhappy  without  all  the  appliances  of  comfort  which  surround  him  at 
home.  The  quantity  and  character  of  baggage  must  depend  very  much  upon 
the  condition  in  life  of  the  traveler,— his  calling,  his  habits,  his  tastes,  the 


380  CARRIERS    OF    GOODS.  [Ch.  7 

probably  as  good  as  can  be  given:  "The  term  TDaggage'  means  such 
goods  and  chattels  as  the  convenience  or  comfort,  the  taste,  the  pleas- 
ure, or  the  protection,  of  passengers  generally  makes  it  fit  and  proper 
for  the  passenger  in  question  to  take  with  him  for  his  personal  use, 
according  to  the  wants  or  habits  of  the  class  to  which  he  belongs,  ei- 
ther with  reference  to  the  period  of  the  transit,  or  the  ultimate  pur- 
pose of  the  journey."  ^®*  In  Hawkins  v.  Hoffman,^^"^  it  was  suggested 
as  a  test  that  whatever  is  usually  carried  as  baggage  should  be  so 
considered.  Brownson,  J.,  said:  "I  do  not  intend  to  say  that  the 
articles  must  be  such  as  every  man  deems  essential  to  his  comfort;  for 
some  men  carry  nothing  or  very  little  with  them  when  they  travel, 
while  others  consult  their  convenience  by  carrying  many  things.  Nor 
do  I  intend  to  say  that  the  rule  is  confined  to  wearing  apparel,  brushes, 
razors,  writing  apparatus,  and  the  like,  which  most  persons  deem  in- 
dispensable. If  one  has  books  for  his  instruction  or  amusement  by 
the  way,  or  carries  his  gun  or  fishing  tackle,  they  would  undoubtedly 
fall  within  the  term  'baggage,'  because  they  are  usually  carried  as 
such.  This  is,  I  think,  a  good  test  for  determining  what  things  fall 
within  the  rule."  ^** 

length  or  shortness  of  his  journey,  and  whether  he  travels  alone  or  with  a 
family.  If  we  agree,  further,  with  Judge  Story,  and  say  that  the  articles  of 
necessity  or  of  convenience  must  be  such  as  are  usually  carried  by  travelers 
for  their  personal  use,  we  are  still  at  fault,  because  there  is,  in  no  state  of 
this  Union,  nor  in  any  part  of  any  one  state,  any  settled  usage  as  to  the 
baggage  which  travelei's  carry  with  them  for  their  personal  use.  The  quan- 
tity and  character  of  baggage  found  to  accompany  passengers  are  as  various 
as  are  the  countenances  of  the  travelers." 

36  4  Lawson,  Bailm.  §  272. 

a«6  6  Hill,  586. 

386  The  right  of  a  traveler  to  recover  of  a  carrier  for  lost  baggage  is  not 
limited  to  such  apparel  or  other  articles  as  he  expects  to  need  or  use  by  the 
way,  but  extends  to  such  baggage  as  is  ordinarily  can-ied  by  passengers. 
The  plaintiff  purchased  in  New  York,  and  checked  over  defendant's  road,  as 
baggage,  a  trunk  and  contents,  consisting  of  wearing  apparel  for  himself  and 
wife,  articles  for  members  of  his  family,  and  cloth  for  some  dresses,  includ- 
ing one  for  his  landlady.  The  trunk  was  lost,  and,  in  an  action  to  recover 
the  value  of  it  and  contents,  held,  that  defendant  was  liable,  except  for  the 
cloth  purchased  for  landlady.  Dexter  v.  Railroad  Co.,  42  N.  Y.  326.  Dam- 
ages may  be  assessed  for  such  articles  of  necessity  and  convenience  as  pas- 
sengers usually  carry  for  their  personal  use,  comfort,  instruction,  amuse- 


§    84]  LIABILITY    AS    INSURERS    OF    BACIGAGli.  381 

Sartie — Illustrations — Articles  Held  to  be  Baggage. 

The  following  articles  have  been  held  to  constitute  baggage:  Cloth- 
ing; ^"  cloth  and  materials  intended  for  clothing;  •■"•''  lilles;  ^*"  pis- 
tols; ^''°  guns,  when  for  sporting  purposes;  ^^^  bedding,  when  pas- 
senger is  required  to  provide  it,^''^'  but  not  otherwise;  "^  tools  of  me- 

ment,  or  protection,  having  regard  to  tlie  length  and  object  of  their  journeys. 
Parmelee  v.  Fischer,  22  111.  212.  "To  the  extent  that  articles  taken  by 
him  for  his  personal  use  when  traveling  exceed  in  quantity  and  value  such 
as  are  ordinarily  or  usually  taken  by  passengers  of  like  station,  and  pursu- 
ing like  journeys,  they  are  not  baggage,  tor  which  the  carriers  are,  by  gen- 
eral law,  responsible  as  insurers."  Railroad  Co.  v.  Fraloff,  100  U.  S.  24.  A 
baggage  check  is  prima  facie  evidence  that  the  owner  was  a  passenger,  and 
that  the  carrier  received  his  baggage.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Clayton. 
78  111.  616.  618;  Illinois  Cent.  R.  Co.  v.  Copelaud,  24  111.  332;  Davis  v.  Uall- 
road  Co.,  10  How.  Prac.  330;  Davis  v.  Railroad  Co.,  22  111.  278;  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Brewer,  20  Kan.  609;  Kansas  Pac.  Ry.  Co.  v.  Montelle,  ic 
Kan,  119.  A  check  Is  evidence  of  delivery  of  a  trunk.  Dill  v.  Railroad  Co., 
7  Rich.  Law.  158. 

367  Dexter  v.  Railroad  Co.,  42  N.  Y.  326;  Toledo,  W.  &  W.  Ry.  Co.  v.  Ham- 
mond. 33  Ind.  379,  382;  Dibble  v.  Brown,  12  Ga.  217,  225;  Baltimore  Steam 
Packet  Co.  v.  Smith,  23  Md.  402.  $10,000  worth  of  laces  (Railroad  Co.  v. 
Fraloff.  100  U.  S.  24)  and  a  servant's  livery  (Meux  v.  Railroad  Co.  [Q.  B.; 
Oct.,  1S95])  have  been  held  to  be  baggage. 

808  Mauritz  v.  Railroad  Co..  23  Fed.  765,  21  Am.  &  Eng.  Ry.  Cas.  286.  292: 
Van  Horn  v.  Kermit.  4  E.  D.  Smith  (N.  Y.)  453;    Dwff^y  v.  Tliompson.  Id.  178. 

366  Bruty  V.  Railroad  Co..  32  U.  C.  Q.  B.  66;  Davis  v.  Railroad  Co.,  10  How. 
Prac.  330. 

870  Davis  V.  Railroad  Co.,  22  111.  278.  Where  a  Chicago  grocer,  who  went 
Into  the  country  In  quest  of  butter,  sought  to  recover  of  a  carrier  the  value  of 
two  revolvers  as  part  of  his  iiaggage.  which  was  lost  by  the  company.  It  was 
held,  with  due  regard  to  the  habits  and  condition  in  life  of  the  passenger,  that 
more  than  one  revolrer  was  not  reasonably  necessary  for  his  personal  use  and 
protection.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Collins.  56  III.  212.  But.  In  Woods 
V.  Devin,  13  111.  746,  a  passenger  was  allowed  to  recover  for  the  loss  of  n 
pocket  pistol  and  a  pair  of  dueling  pistols  contained  in  his  carpetbag  with 
other  baggage. 

871  Van  Horn  v.  Kermit,  4  E.  D.  Smith  (N.  Y.)  453. 

872  Hlrschsohn  v.  Packet  Co.,  34  X.  Y.  Super.  Ct.  521. 

373  Connolly  v.  Warren.  106  Mass.  146;  Macrow  v.  Railroad  Co.,  L.  R.  6  Q. 
B.  612.  Contra,  Ouimit  v.  Heushaw,  35  VL  605.  And  see  Parmelee  v.  Fischer, 
22  111.  212. 


382  CARRIERS    OF    GOODS.  [Ch.  7 

chanics;  "*  surgical  instruments;  ^""^  watches  and  jewelry,  when  in- 
tended to  be  worn;^''^  opera  glasses  or  telescopes; ''''  dressing 
cases; '^®  books  and  manuscripts;  ^^®  merchandise,  where  the  fact  is 
disclosed,  or  the  articles  so  packed  that  their  nature  is  obvious;  ^^" 
carpets; '^^  money  for  expenses;  ^^*  a  commercial  traveler's  price 
book,^*'  etc. 

8T4  Davis  V.  Railroad  Co.,  10  How.  Prac.  330;  Porter  v.  Hlldebrand,  14  Pa. 
St.  129.  A  reasonable  quantity  of  his  tools  is  proper  baggage  for  a  me- 
chanic working  as  a  watchmaker  and  jeweler.  What  such  a  reasonable  quan- 
tity is,  is  a  question  for  the  jury.  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Morrison, 
34  Kan.  502,  9  Pac.  225. 

87  5  Hannibal  R.  Co.  v.  Swift,  12  Wall.  (U.  S.)  2G2.  A  dentist's  instruments. 
Brock  V.  Gale,  14  Fla.  523. 

87  6  McCormick  v.  Hudson  R.  Co.,  4  E.  D.  Smith  (N.  Y.)  181;  Torpey  v.  Wil- 
liams, 3  Daly  (N.  Y.)  162;  McGill  v.  Rowand.  3  Pa.  St.  451;  Jones  v.  Voor- 
hees,  10  Ohio,  145;  Coward  v.  East  Tennessee  R.  Co.,  16  Lea,  225;  American 
Contract  Co.  v.  Cross,  8  Bush  (Ky.)  472.  A  man  travf-Iing  alone,  and  carrying 
in  his  trunk,  for  transportation,  a  quantity  of  la.dv's  iewelrv.  cannot  recover 
for  the  loss  thereof  against  a  common  carrier,  ^fl^z  v.  California  Southern  R. 
Co.,  85  Cal.  329,  24  Pac.  610.       — — — 

377  Toledo,  W.  &  W.  Ry.  Co.  v.  Hammond,  33  Ind.  379;  Cadwallader  v. 
Grand  Trunk  R.  Co.,  9  L.  C.  169. 

37  8  Cadwallader  v.  Grand  Trunk  R.  Co.,  9  L.  C.  169. 

879  Gleason  v.  Goodrich  Transp.  Co..  32  Wis.  85;  Hopkins  v.  Westcott,  6 
Blatchf.  64,  Fed.  Cas,  No.  6,692;  Doyle  v.  Kiser,  6  Ind.  242.  See,  also,  post, 
notes  393,  394. 

380  Stoneman  v.  Erie  R.  Co.,  52  N.  Y.  429;  Sloman  v.  Railroad  Co.,  67  N.  Y. 
208;  Hellman  v.  Holladay,  1  Woolw.  365,  Fed.  Cas.  No.  3.640.  Where  the 
carrier  has  knowledge  that  the  contents  of  the  trunk  or  package  delivered  for 
transportation  are  merchandise,  and  not  personal  baggage,  and  accepts  it,  he 
becomes  liable  for  it  as  a  common  carrier.  Hannibal  R.  Co.  v.  Swift,  12  Wall. 
362;  Waldron  v.  Chicago  &  N.  W.  R.  Co.,  1  Dak.  351,  46  N.  W.  456;  Texas, 
etc.,  R.  Co.  V.  Capps,  18  Cent.  Law  J.  211. 

8  81  Where  a  passenger  delivered  his  trunk  and  a  piece  of  carpeting  to  the 
baggage  master  of  a  railroad  train,  and  received  a  check  for  his  trunk,  but 
was  told  that  no  check  was  necessary  for  the  carpet,  as  it  would  go  safely. 
It  was*  held  that  the  company  was  liable  for  the  loss  of  the  carpet,  although, 
by  the  printed  rules  of  the  company,  the  baggage  master  was  forbidden  to 
receive,  as  a  passenger's  baggage,  articles  of  merchandise.  Miter  v.  Pacific 
R.  Co.,  41  Mo.  503. 

882  Illinois  Cent  R.  Co.  y.  Copeland,  24  111.  332  (but  cf.  Davis  v.  Michigan 

»•«  Gleason  v.  Transportation  Co.,  32  Wis.  85. 


§    84]  LIABILITY    AS    INSURERS    OF    BAGGAGE.  388 

Same — Articles  Held  not  to  Constitute  Baggage. 

Under  the  circumstances  of  each  particular  case,  the  followlnf^  ar- 
ticles have  beeu  held  not  to  constitute  baggage:  Bedding,  liou.sdiold 
goods,  etc.;^®^  money  not  intended  for  personal  use;^*^'  cloth  for  a 
dress  intended  for  a  third  person;  ^^^  presents;  ^^^  toys;^*'  medi- 
cines, handcuffs  and  locks;  ^®®  quantities  of  watches; '°°  bullion, 
jewelry,  etc.,  not  intended  to  be  worn;  *°'  samples  of  traveling  sales- 
Cent.  R.  Co..  22  111.  27Si;  Men  ill  v.  Giiuuill.  :^>o  N.  Y.  :>\H;  <)i:ini;e  Couiily  Bank 
V.  Brown,  i)  Wend.  (N.  Y.;  8.");  llutchiugs  v.  Western  &.  A.  R.  Li.  Co.,  25  LJ:i.  lil ; 
Bomar  v.  Maxwell,  9  Humph.  (Tenu.)  621;  Doyle  v.  Kiser,  6  Ind.  242.  lu 
Grant  v.  Newton,  1  E.  D.  Smith  (N.  Y.)  95,  It  was  held  that  the  liability  of  a 
passenger  carrier  for  baggage  lost  through  his  negligence  does  not  extend  to 
money,  even  if  no  more  than  sufficient  for  traveling  expenses,  contained  In  the 
trunk  of  a  passenger.  In  Merrill  v.  Grinnell,  30  N.  Y.  594,  upon  the  quostion 
of  a  reasonable  amount  of  money  for  traveling  purposes,  it  was  held  that  the 
•'amount  innst  be  measured,  not  alone  by  the  requirements  of  the  tran^^it 
over  a  particular  part  of  the  entire  route  to  which  the  line  of  one  class  of 
carriers  extends,  but  must  embrace  the  whole  of  the  contemplated  jouruiy. 
and  includes  such  an  allowance  for  accidents  or  sickness,  and  for  sojourning 
by  the  way,  as  a  reasonably  prudent  man  would  consider  It  necessary  to 
make,"  In  tiJis  case,  $800  in  gold  coin  in  the  passenger's  trunk  was  not  con- 
sidered to  be  too  large  an  amount,  the  intended  journey  being  from  Ilainburg 
to  New  York  and  San  Francisco. 

8  84  Connolly  v.  Warren,  lOO  Mass.  146;  McCrow  v.  Railroad  Co.,  L.  R.  6  Q. 
B.  612;  Texas  &  P.  Ry.  Co.  v.  Ferguson,  9  Am.  &  Eng.  R.  Cas.  30.5.  See  supra, 
note  372. 

385  Orange  County  Bank  v.  Brown,  9  Wend.  85;  Weed  v.  Saratoga  &  S.  R. 
Co.,  19  Wend.  (N.  Y.)  534;  Whitmore  v.  The  Caroline.  20  Mo.  513;  Jordan  v. 
Fall  River  R.  Co.,  5  Cush.  G9;  Dunlap  v.  International  Steamboat  Co.,  DS 
Mass.  371;  Dibble  v.  Brown,  12  Ga.  217;  Davis  v.  Michigan  Southern  &  N.  I. 
R.  Co.,  22  111.  278;  Hutchings  v.  Western  &  A.  R.  R.,  25  Ga.  61.  Money  carried 
in  a  passenger's  trunk  for  transportation  merely,  and  not  for  traveling  ex- 
penses, is  not  baggage;  and,  if  the  carrier  is  not  informed  of  its  presence,  he  is 
not  liable  for  its  loss.    Orange  County  Bank  v.  Brown,  9  Wend.  85. 

8S6  Dexter  v.  Syracuse,  B.  &  N.  Y.  R.  Co.,  42  N.  Y.  326. 

887  Nevins  v.  Bay  State  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225;  The  loulc,  5 
Blatchf.  538,  Fed.  Cas.  No.  7,059. 

R8S  Hudston  V.  Railroad  Co.,  10  Best  &  S.  504  (a  child's  rocking  horse). 

8f*9  Bomar  v.  Maxwell,  9  Humph.  (Tenn.)  620. 

890  Belfnst,  etc.,  R.  Co.  v.  Keys,  9  H.  L.  Cas   .556. 

801  Cincinnati  &  C.  A.  L.  R.  Co,  v.  Marcus,  38  111.  219;  Nerlna  v.  Bay  State 
Steamboat  Co.,  4  Bosw.  (N.  Y.)  225;  Steers  v.  Livei-pool.  N.  Y.  &.  P.  S.  S.  Co., 
57  N.  Y.  1;  Michigan  Cent  R.  Co.  v,  Carrow,  73  111,  34a 


384  CARRIERS    OF    GOODS.  [Ch.  7 

men;'"    deeds    and    documents;'®'    valuable    papers;"'*    engrav- 
ings; ""    and  many  other  articles.^®' 

Effect  of  Custom  and  Usage. 

Evidence  of  custom  and  usage  is  relevant  on  the  question  of  what 
constitutes  baggage.  If  a  carrier,  either  expressly  or  by  custom 
and  usage,  holds  itself  out  as  willing  to  carry  for  its  passengers,  as 
baggage,  or  without  additional  compensation,  articles  not  ordina- 
rily regarded  as  baggage,  it  is  clearly  liable  as  a  common  carrier  of 
such  articles;  for  it  may  well  be  that  such  offer  or  holding  out  was 
the  main  inducement  in  the  selection  of  that  particular  carrier's 
line,  or,  indeed,  for  the  journey  itself.^^^ 

Liability  for  Merchandise  Shipped  as  Baggage. 

While  common  carriers  of  passengers  are  bound  to  carry  the  pas- 
senger's baggage,  they  are  not  bound  to  carry  with  the  passenger 

802  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  586;  Pennsylvania  Co.  v.  Miller,  35 
Ohio  St.  541;  Texas,  etc.,  R.  Co.  v.  Capps.  Iti  Am.  &  Eug.  R.  Cas.  118;  AUing 
<r.  Boston  &  A.  R.  Co.,  126  Mass.  121;  Stimson  v.  Connecticut  R.  R.  Co.,  98 
Mass.  83. 

883  Phelps  V.  Railway  Co.,  19  O.  B.  (N.  S.)  321. 

894  Phelps  V.  Railway  Co.,  19  C.  B.  (N.  S.)  321;  Thomas  v.  Great  Western  R. 
Co.,  14  U.  C.  Q.  B.  389. 

896  Nevins  v.  Bay  State  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225. 

8»6  A  passenger  tooli  a  dog  with  him  into  a  coach,  but  was  required  by  the 
brakeman  to  put  the  dog  in  the  baggage  car;  the  plaintiff  paying  the  bag- 
gageman for  its  transportation.  A  rule  of  the  carrier,  of  which  the  plaintiff 
had  no  notice,  provided:  "Live  animals  are  allowed  as  baggageman's  per- 
quisites." The  dog  was  lost  by  being  delivered  by  the  baggage  man  to  the 
wrong  person.  It  was  held  that  plaintiff  could  recover  its  value  from  the 
carrier.  Cantling  v.  Hannibal  &  St.  J.  II.  Co.,  54  Mo.  385.  Stage  properties, 
etc.,  have  been  held  not  to  be  baggage.  Oakes  v.  Northern  Pac.  R.  Co.,  20  Or. 
392,  26  Pac.  230.  Neither  is  Masonic  regalia.  Nevins  v.  Bay  State  Steamboat 
Co.,  4  Bosw.  225.  Nor  a  lady's  jewelry  (for  a  man),  Metz  v.  California  South. 
R.  Co.,  85  Cal.  329,  24  Pac.  610.  Nor  a  sacque,  muff,  and  napkin  ring  (for  a 
man).  Chicago,  R.  I.  &  P.  R.  Co.  v.  Boyce,  73  111.  510.  See  Kansas  City,  M. 
&  B.  R.  Co.  V.  Higdon,  94  Ala.  286,  10  South.  282.  See,  also,  Honeyman  v. 
Oregon  &  C.  R.  Co.,  13  Or.  352,  10  Pac.  628. 

80  7  Dibble  v.  Brown,  12  Ga.  517.  But  see  Ailing  v.  Railroad  Co.,  126  Mass. 
121.  The  course  of  business  and  the  practice  of  a  railroad  company  In  respect 
to  the  custody  of  baggage  passing  over  its  line,  and  to  be  transferred  to  a 
connecting  road,  is  of  great  importance  In  determining  the  nature  of  its  lia- 
bility therefor.     Whether  a  bed,  pillows,  bolster,  and  bed  quilts,  belonging  to 


S    84]  LIABIIITY    Ab    INSFRERS    OF    BAGGAGE.  386 

anything  that  is  not,  in  a  legal  sense,  baggage.'"  Freight  trains 
and  express  facilities  are  provided  for  the  transportation  of  such 
articles,  and  the  carrier  is  entitled  to  compcusalion  therefor.  How- 
ever, if  the  carrier  voluntarily  receives  for  transportation  with  the 
passenger,  as  baggage,  articles  which  are  not  baggage,  the  fare  ])aid 
by  the  passenger  is  compensation  for  both,  and  the  carrier  is  liable 
ap  a  common  carrier,  just  as  if  the  articles  carried  were  actually 
and  technically  baggage. •■'®^  Where  the  carrier  or  his  agent  is  ex- 
pressly notified  that  the  articles  are  not  baggage,  and  nevertheless 
receives  them,  no  question  can  arise.  But  notice  that  the  articles 
are  not  baggage  may  be  implied  where  the  goods  are  so  packed  that 
their  naturj  is  obvious.*""    Thus,  where  a  roll  of  carpet  was  received 

a  poor  man,  -who  is  moving  with  his  family,  carried  along  with  him  In  a  rail- 
road train,  and  packed  in  his  trunk  or  box  containing  his  clothing,  are  baggage 
or  not,  is  a  question  to  be  decided  by  the  jury,  taking  into  consideration  the 
particular  circumstances  of  the  case,  and  the  U!^;e.  quality,  value,  and  kind  of 
articles  in  question.    Ouimit  v.  Henshaw.  35  Vt.  605. 

398  pfister  V.  Railroad  Co.,  70  Cal.  169,  11  Pac.  G86;  Norfolk  &  W.  R.  Co.  v. 
Irvine,  84  Va.  553,  5  S.  E.  532;    Id..  85  Va.  217,  7  S.  E.  233. 

899  Jacobs  V.  Tutt,  33  Fed.  412.  In  Stoneman  v.  Erie  R.  Co..  52  N.  Y.  429, 
Peckham,  J.,  said:  "I  think  it  safe  to  say  that,  If  the  carrier  knew  or  had 
notice  of  the  character  of  the  goods  taken  as  baggage,  and  still  undertook  to 
transport  them,  he  is  liable  for  their  loss,  although  they  are  not  traveler's  bag- 
gage."   Waldron  v.  Chicago  &  N.  W.  R.  Co.,  1  Dak.  351,  46  N.  W.  456. 

400  Thomp.  Cart.  523;  Waldron  v.  Chicago  &  N.  W.  R.  Co.,  1  Dak.  3.j1,  40 
N.  W.  456;  Butler  v.  Hudson  R.  R.  Co.,  3  E.  D.  Smith,  571.  It  seems  neces- 
sary to  charge  the  carrier  or  his  servant  with  actual  knowledge  that  the 
thing  carried  was  merchandise,  and  not  luggage.  Wood,  Ry.  Law,  1528.  If 
a  carrier  knowingly  received  from  a  passenger  article^  as  baggage  which  are 
not  properly  classed  as  such,  either  with  or  without  extra  charge  therefor,  It 
will  be  liable  for  their  loss,  altliough  without  its  fault.  Uakes  v.  Northern 
Pac.  R.  Co.,  20  Or.  392,  20  Pac.  230.  For  cases  where  extra  payment  was 
made,  see  Centml  Trust  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  39  Fed.  417; 
Glasco  V.  New  York  Cent.  R.  Co.,  36  Barb.  557;  Sloman  v.  Great  Western 
R.  Co.,  67  N.  Y.  208;  Perley  v.  New  iork  Cent.  A:  H.  R.  R.  Co.,  65  N.  Y.  374; 
Millard  v.  Missouri,  K.  &  T.  R.  Co.,  86  N.  Y.  441;  Hellmau  v.  Holladay,  1 
Woolw.  305,  Fed.  Cas.  No.  6,340.  But  see  Hamburg-American  Packet  Co.  v. 
Gattman,  127  III.  598,  20  N.  E.  662.  Where  the  baggage  master  of  a  railroad 
company  accepts  extra  baggage,  with  the  understanding  with  the  passenger 
that  extra  payment  shall  be  made  for  the  transportation  thereof,  the  company 
becomes  responsible,  as  common  carrier,  for  the  delivery  of  such  extra  bag- 
gage.    Strouss  V.  Railway  Co.,  17  Fed.  209.     The  mere  payment  of  extra  com- 

LAWBAILM. — 25 


386  CARRIERS    OF    GOODS.  [Ch.   7 

as  baggage,  the  carrier  was  held  liable  for  its  loss.*°^  And,  where 
poles,  ropes,  and  canvas  constituting  a  tent  belonging  to  a  passenger 
were  accepted  as  baggage  for  transportation,  it  was  held  that  the 

pensatlon  for  extra  baggage  does  not  convert  such  baggage  into  freight. 
Hamburg-American  Pacliet  Co.  v.  Gattmau,  supra.  "If  the  plaintiff  had  car- 
ried these  articles  exposed,  or  had  packed  them  in  shape  of  merchandise,  so 
the  company  might  have  known  what  they  were,  and  they  had  chosen  to 
treat  them  as  personal  luggage,  and  carried  them  without  demanding  any 
extra  remuneration,  they  would  have  been  responsible  for  the  loss."  Per 
Parke,  B.,  in  Great  Northern  R.  Co.  v.  Shepherd,  S  Exch.  30.  A  carrier  who 
checks  a  trunk  containing  a  stock  of  jewelry,  knowing  or  believing  that 
such  is  its  contents,  is  liable  the  same  as  though  the  trunk  contained  wear- 
ing apparel.  Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  39  Fed.  417. 
Where  property  received  on  a  passenger  train  is  not  represented  to  be  bag- 
gage, and  is  not  packed  so  as  to  assume  that  appearance,  the  carrier's  re- 
sponsibility for  safe  carriage  is  the  same  as  though  it  were  shipped  on  a 
freight  train.  Hannibal  R.  R.  v.  Swift,  12  Wall.  2G2.  The  fact  that  a  pack- 
age was  marked  "Glass,"  and  resembled  a  package  of  mercliandise.  is  in- 
sufficient to  show  an  undertaking  to  carry  such  merchandise  as  baggage. 
Cahill  V.  Railroad  Co.,  10  C.  B.  (N.  S.)  154,  13  C.  B.  (N.  S.)  818.  "The  prin- 
ciple to  be  extracted  from  the  cases  very  clearly  excludes  merchandise,  as 
such,  in  the  idea  of  baggage,  for  which  the  carrier  was  responsible,  and 
therefore,  unless  it  is  paid  for  otherwise  than  in  the  price  of  the  passenger's 
ticket,  the  carrier  is  not  liable  for  its  loss,  unless  caused  by  his  negligence. 
Of  course,  it  is  not  meant  that  compensation  for  the  freight  should  actually 
Slave  been  paid;  but,  to  make  the  common  carrier  an  insurer  of  the  goods, 
lit  is  essential  that  the  goods  be  carried  for  a  reward,  and  therefore,  if  the 
owner  undertake  to  carry  merchandise  in  the  chai-acter  of  baggage,  or  to 
conceal  money  in  other  parcels,  aud  thus  to  deprive  the  carrier  of  its  just 
compensation,  such  merchandise  or  money  must  be  at  his  own  risk,  unless 
Eost  or  injured  by  the  wrongful  act  of  the  carrier,  because  they  are  carried 
without  that  reward  which  is  the  foundation  of  the  carrier's  contract  to  in- 
sure, and  which  ought,  in  justice,  to  be  in  proportion  of  the  risk."  Smith 
V.  Boston  &  M.  R.  Co.,  44  N.  H.  325;  Gibbon  v.  Paynton,  4  Burrows,  22U8; 
Batson  v.  Donovan,  4  Barn.  &  Aid.  21.  Where  the  agent  of  a  railroad  com- 
pany checks  the  trunk  of  a  jewelry  salesman,  containing  his  stock  in  trade, 
with  full  knowledge  of  its  contents,  and  without  any  concealment  having 
been  practiced  by  the  salesman,  the  latter,  upon  the  loss  of  the  trunk,  may 
recover  compensation  as  though  the  contents  were  ordinary  baggage.  Jacobs 
V.  Tutt,  33  Fed.  412.  This  is  so  although  the  agent  does  not  know  that  the 
trunk  contains  jewelry,  If  he  has  reason  to  believe  that  It  does.     Central 

401  Mlnter  v.  Pacific  R.  Co.,  41  Mo.  503. 


§    81]  LIABILITY    AS    INSURERS    OF    BAGGAGE.  387 

carrier  must  account  for  them  as  if  they  were  personal  ln^'f,';i};<'.*''* 
But  the  mere  fact  that  a  box  is  tendered,  instead  of  a  trunk,* °'  or 
that  a  trunk  is  of  the  kind  usually  used  by  commercial  travelers,*"* 
is  not  notice  that  they  contain  merchandise  or  samples.  Baggage 
may  well  be  carried  in  that  manner,  and,  as  it  is  not  apparent  what 
they  do  contain, *"''  the  carrier  may  rely  on  the  implied  representa- 
tion that  they  contain  only  baggage.      A  passenger,  by  tendering  a 

Trust  Co.  V.  Wabash,  St.  L.  &  P.  Ry.  Co.,  39  Fed.  417.  But,  where  a  pas- 
senger has  a  valise  containing  merchandise  checked  over  defendant's  road 
without  informing  defendant's  baggage  master  of  its  contents,  defendant  Is 
not  under  obligation  to  transport  it  safely,  although  defendant's  baggage 
masters  at  other  stations  may  have  previously  checked  the  valise  with  knowl- 
edge of  Its  contents.  Blumenthal  v.  Railroad  Co.,  79  Me.  550,  11  Atl.  G05. 
Where  property  is  checked  as  baggage  which  is  not  such,  and  the  passenger 
seeks  to  hold  the  carrier  liable  for  its  loss  as  baggage,  the  burden  of  show- 
ing that  the  carrier  had  notice  of  the  nature  of  the  property  rests  upon  the 
passenger.  Haines  v.  Railway  Co.,  29  Minn.  160,  12  N.  W.  447.  Where  a 
carrier,  with  full  knowledge  that  trunks  offered  for  transportation  contain 
merchandise,  receives  and  checks  them  as  baggage,  the  estoppel  to  claim 
that  they  are  not  baggage  extends  to  the  passenger  as  well  as  to  the  carrier: 
and  therefore.  If  the  carrier  in  such  case  keeps  the  trunks  a  sutticiently  rea- 
sonable length  of  time  for  the  presentation  of  the  checks,  and  then,  having 
been  placed  in  a  proper  and  suitable  baggage  room,  they  are  destroyed  by 
fire  without  the  fault  of  the  carrier,  it  is  not  liable,  although  it  would  have 
been  if  the  trunks  and  their  contents  were  treated  as  freight.  Hoeger  v. 
Railway  Co.,  63  Wis.  100,  23  N.  W.  435. 

402  Chicago,  R.  I.  &  P.  R.  Co.  v.  Conklin,  32  Kan.  55.  3  Pac.  762. 

403  Belfast,  etc..  R.  Ca  v-  Keys,  9  IJ.  I..  Cas.  556. 

404  See  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348;  Humphreys  v.  i'orry. 
13  Sup.  Ct.  711.  Goods  and  samples,  constituting  a  commercial  traveler'B 
outfit,  are  to  be  considered  personal  baggage,  where  the  carrier  and  passen- 
ger conti-acted  with  a  full  understanding  of  the  nature  of  the  property,  and 
that  It  did  not  consist  of  ordinary  apparel  and  things  carried  for  use  on  the 
journey.  Dixon  v.  Richelieu  Nav.  Co.,  15  Out.  App.  (H7,  39  Am.  &  Eng.  R. 
Cas.  425.  See,  also,  Sloman  v.  Great  Western  R.  Co.,  67  N.  Y.  20S.  reversing 
6  Hun,  546. 

40B  A  baggage  man  having  accepted,  for  transportation  along  with  a  pas- 
senger's baggage,  a  box  obviously  containing  merchandise,  the  carrier  Is  re- 
sponsible for  the  transportation  and  delivery  at  the  passenger's  destination. 
Butler  V.  Hudson  R.  R.  Co.,  3  E.  D.  Smith,  671;  Waldron  v.  Chicago  &  N. 
W.  R.  Co.,  1  Dak.  851,  46  N.  W.  456. 


388  CARRIERS    OB'    GOODS.  [Ch.   7 

package  to  be  carried  as  baggage,  impliedly  represents  that  it  con- 
tains only  baggage.*"'  The  carrierhasaright  to  rely  upon  this 
representation  without  making  any  inquiries,  and,  if  the  package  in 
fact  contains  merchandise,  it  operates  as  al^raud  on  the  carrier,^ °^ 
^nd  the  latter  is  not  liable  as  an  insurer,  biit  only  as  a  graTuitous 
bailee;  that  is,  for  gross  negligence.*"^  If  the  carrier  inquires  as 
iSrtEe^onr^ts,  tne  passeug'i^r  must,  ot  course,  answer  truly;  and,  if 
he  refuses  to  answer,  the  carrier  may  refuse  to  transport  the  arti- 
cles as  baggage.*"* 

*06  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348;  Humphreys  v.  Perry,  13 
Sup.  Ct.  711;  Haines  v.  Railroad  Co.,  29  Minn.  160,  12  N.  W.  447.  Contra,  Kuter 
V.  Railroad  Co.,  1  Biss.  35,  Fed.  Cas.  No.  7,955. 

407  "Whether  any  fraud  in  fact  was  intended,  it  is  not  necessai-y  to  in- 
quire. The  transaction  was  fraudulent  in  law,  and  this  is  sufficient,  by  all 
the  authorities,  to  avoid  any  contract,  whether  express  or  Implied.  The  fact 
that  appellee  offered,  as  common  baggage,  merchandise  of  extraordinary 
value,  is  a  legal  fraud,  such  as  will  excuse  the  performance  of  a  contract." 
Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348.  See,  also,  Blumenthal  v.  Rail- 
road Co.,  79  Me.  550,  11  Atl.  605,  Hellman  v.  Holladay,  1  Woolw.  365,  Fed. 
Cas.  No.  6,340. 

408  Michigan  Cent.  R.  Co.  v.  Carrow,  73  111.  348;  Smith  v.  Boston  &  M.  R.  Co., 
44  N.  H.  325;  Ailing  v.  Boston  &  A.  R.  Co.,  126  Mass.  121;  Blumantle  v. 
Fitchburg  R.  Co.,  127  Mass.  322.  And  see  Haines  v.  Chicago,  etc.,  R.  Co.,  29 
Minn.  160;  Pennsylvania  Co.  v.  Miller,  35  Ohio  St.  541.  In  Cahill  v.  Railroad 
Co.,  13  C.  B.  (N.  S.)  818,  It  appeared  that  a  passenger  presented  to  the  com- 
pany, as  luggage,  a  box  containing  only  merchandise,  but  not  exceeding  in 
weight  the  limit  prescribed  for  personal  luggage.  No  information  was  given 
to  the  company  of  the  contents  of  the  box.  Held,  that  he  could  not  recover 
for  the  loss  of  the  box.  Chief  Justice  Cockburn,  in  this  case,  said:  "If  a 
railway  company  *  *  *  choose  to  take,  as  ordinary  luggage,  that  which 
they  know  to  be  merchandise,  I  quite  agree  that  it  is  not  competent  for  them, 
in  the  event  of  a  loss,  to  claim  exemption  from  liability  on  the  ground  that 
the  article  consists  of  merchandise,  and  not  of  ordinary  luggage.  But,  on 
the  other  hand,  If  a  passenger,  who  knows,  or  ought  to  know,  that  he  is  only 
entitled  to  have  his  ordinary  personal  luggage  carried  free  of  charge,  chooses 
to  carry  with  him  merchandise,  for  which  the  company  are  entitled  to  make  a 
charge,  he  cannot  claim  to  be  compensated  in  respect  of  any  loss  or  Injury 
by  the  company  to  whom  he  has  abstained  from  giving  notice  of  the  con- 
tents,"    See,  also.  Great  Northern  Ry.  Co.  v.  Shepherd,  8  Exch.  30. 

*o9  Railroad  Co.  v.  Fraloff,  100  U.  S.  24;  Norfolk  &,  W.  R.  Co.  v.  Irvine,  84 
Va,  553,  5  S.  E.  532;    Id.,  85  Va.  217,  7  S.  E.  233. 


S    84]  M ABILITY    AS    INSURERS    OF    BAGGAGE.  889 

Passenger  mxist  be  Ovmer. 

A  passenger  carrier's  contract  is  to  carry  the  passenger  safely, 
together  with  such  articles  and  money  as  are  properly  contained  in 
the  baggage  which  he  brings  with  him;  but  he  does  not  contract  to 
carry  anything  which  the  passenger  brings  with  him,  in  the  shape 
of  baggage,  which  in  fact  and  law  is  not  baggage,  but  merchandise 
or  money,  which  he  cannot  ask  a  carrier  to  receive  in  that  form.*" 
"Baggage,"  as  has  been  seen,  signifies  such  articles  of  convenii-nce 
or  necessity  as  are  carried  for  the  passenger's  personal  use.*"  It 
follows,  therefore,  that  the  carrier  is  not  liable  for  articles  carried 
as  baggage,  in  which  the  passenger  has  neither  the  general  owner- 
ship nor  a  special  interest,  for  in  such  case  the  articles  would  not 
be  carried  for  the  passenger's  personal  use.  Thus  it  has  been  held 
that  a  statute  *^^  providing  for  an  allowance  of  baggage  to  each 
railroad  passenger  does  not  permit  the  passenger  to  take  the  bag- 
gage of  another.  In  this  case  the  plaintiff  had  procured  the  passen- 
ger to  make  the  journey  for  the  express  purpose  of  transporting  the 
property  in  question.  The  court  said:  ''Tliis  allowance  is  a  per- 
sonal privilege  extended  to  a  passenger  to  enable  him  to  carry  his 
own  baggage.  It  was  not  the  purpose  of  the  legislature,  in  adopt- 
ing this  provision,  to  permit  a  passenger  to  take  with  him,  as  his 
own,  the  baggage  of  another  person,  whether  as  a  matter  of  accom- 
modation, or  for  compensation  paid.  Otherwise  passengers  might 
engage  in  the  business  of  baggage  carrying,  each  to  the  extent  of  100 
pounds.  Such  a  conclusion  we  think  would  be  absurd."**^  So  it 
has  been  held  that  a  carrier  of  passengers  with  their  baggage  is 
not  liable  for  the  loss  of  money  of  one  passenger  contained  in  a 

*ip  Dunlap  V.  Steamboat  Co.,  98  Mass.  371. 

♦  11  In  Michigan  Southern  &  N.  I.  R.  Co.  v.  Oehm,  58  111.  203.  It  is  held 
that  dpfendant  was  not  liable  for  the  loss  of  masquerade  costumes  which 
plaintiff  was  carrying  in  her  trunli.  to  be  used  by  others  at  a  ball.  The  plaiu- 
tiff  having  shipped,  as  personal  baggage,  merchandise  to  be  used  iu  hei 
trade,  and  in  no  sense  whatever  capable  of  being  considered  as  persona.' 
baggage,  the  company,  not  having  notice  of  the  content*  of  the  trunks,  wert 
released  from  their  liability  as  common  carriers. 

♦  12  Sayles  Civ.   St.  art.  425Sb. 
*»»Andrews  v.  Railroad  Co.,  25  S.  W.  1040. 


890  CARRIERS    OF    GOODS.  [Ch.  7 

valise  which  another  passenger,  with  the  knowledge  of  the  first,  de- 
liA'ers  as  his  own  baggage,  and  the  carrier  receives  as  such.*^*  So 
where  the  plaintiff's  servant  goes  on  in  advance,  taking  with  him 
his  master's  baggage,  the  carrier  is  not  liable  for  its  loss,  if  it  was 
accepted  as  the  baggage  of  the  servant.*^"  But  members  of  the 
same  family,  traveling  together,  may  carry  each  other's  effects.*^® 
And  it  has  been  held  that  where  the  plaintiff  went  on  in  advance, 
leaving  his  baggage  to  be  brought  seven  days  later  by  his  wife,  with 
her  own  baggage,  defendant  was  liable  to  plaintiff  for  its  loss.*^"' 

Of  pnnrsp^  it  is  not  npcessarv  tlmt  the  passenger  be  the  absolute 
owner  of  the  articles  carried.  It  is  sufficient  that  he  has  a  special 
interest  in  them ;  as,  for  instance,  where  they  have  been  hired  or 
borrowed  for  use  npnn  the  iourneY. 

Same — Passenger  Need  not  Accompany  Baggage. 

In  cases  where  the  passenger  accompanies  his  baggage,  the  fare 
charged  for  his  passage  includes  compensation  for  its  transporta- 
tion, and  the  carrier  becomes  liable  for  its  safe  delivery,  without 
additional  compensation.  If  the  passenger  does  not  acompany  it, 
the  carrier  may  claim  compensation  in  advance,  or  may  postpone 
his  claim  until  the  delivery,  and  rely  on  his  lien,  or  on  the  personal 
responsibility  of  the  owner.  In  either  case  he  is  liable  as  a  com- 
mon carrier.  The  actual  payment  of  the  freight  in  one  case,  and 
the  actual  liability  and  lien  for  its  payment  in  the  other,  constitute 
the  consideration  for  the  undertaking.*^*  The  fare  paid  by  a  pas- 
senger over  a  railroad  is  the  compensation  for  his  carriage,  and  for 
the  transportation  at  the  same  time  of  such  baggage  as  he  may  re- 
quire for  his  personal  convenience  and  necessity  during  his  jour- 
ney. Baggage  subsequently  forwarded  by  his  direction,  in  the  ab- 
sence of  any  special  agreement  of  the  carrier,  or  of  negligence  on 
his  part,  is  liable,  like  any  other  article  of  merchandise,  to  the  pay- 

*i*  Dunlap  V.  Steamboat  Co.,  98  Mass.  371. 

*io  Becher  v.  Railroad  Co.,  L.  R.  5  Q.  B.  241. 

4i«  Dexter  v.  Railroad  Co.,  42  N.  Y.  326. 

*i7  Curtis  V.  Railroad  Co.,  74  N.  Y.  IIG. 

*i8  The  Elvira  Harbeck,  2  Blatchf.  33G,  Fed.  Cas.  No.  4,424;  Wilson  v. 
Railroad  Co.,  57  Me.  138.  It  makes  no  difference  that  nothing  was  said  at 
the  time  the  baggage  was  delivered  about  compensation.  The  carrier  is, 
prima  facie,  entitled  to  it.    Lawson,  Bailm.  §  280. 


§   84]  LIABILITY    AS    INSURERS    OF    BAGGAGE.  391 

ment  of  the  usual  freight.""  'It  is  implied  in  the  contract  that  the 
baggage  and  the  passenger  go  together.  •  •  •  Tf  its  trunsinin- 
sion  may  be  delayed  two  days,  and  the  carrier  is  required  to  take 
it  without  any  compensation,  save  the  fare  paid  by  the  passenger 
who  had  preceded  it,  it  may  equally  be  delayed  weeks  or  months,  and 
the  carrier  required  to  forward  it  without  any  additional  pay.  It 
presents  a  different  question  if  the  delay  is  caused  by  the  fault  of 
the  carrier,  or  there  is  a  special  agreement  with  hiiu,  or  his  autlior- 
ized  agent,  for  the  subsequent  transportation  of  the  jiassenger's  bag- 
gage." *^°  In  the  absence  of  a  special  agreement,  or  negligt-nce  on 
the  part  of  the  carrier,  a  passenger  is  liable  for  freight  charges  on 
his  baggage,  unless  he  accompanies  it.  But  if  a  passenger  pays  his 
fare,  and  his  baggage  is  sent  forward  pursuant  to  an  agreement,  and 
as  a  part  of  the  consideration  moving  from  the  company  for  the 
fare  prepaid  by  the  passenger,  the  company  is  liable  as  a  common 
carrier  whether  the  baggage  is  forwarded  on  the  same,  the  preced- 
ing, or  a  subsequent  train,  and  the  owner  is  not  liable  for  additional 
charges.*** 


£t^  g^4^  ?e/..  //H 


*i9  Wilson  V.  Railroad  Co..  5(5  Me.  60;  Graffam  v.  Railroad  Co.,  G7  Me.  234. 
Where  the  passenger,  with  the  consent  of  the  carrier,  stops  over,  and  permits 
his  baggage  to  go  on,  the  carrier  is  liable  as  an  Insurer  until  a  reasonable 
time  elapses  after  the  baggage  has  reached  Its  destination  without  the  pas- 
senger calling  for  it.  Logan  v.  Railroad  Co.,  11  Rob.  (La.)  24;  Chicago,  R. 
I.  &  P.  R.  Co.  V.  Fairclough.  52  111.  lOG.  But  see  Laffroy  v.  Grummoud,  74 
Mich.  186. 

*2o  Wilson  V.  Railroad  Co.,  56  Me.  60.  Railroad  companies  are  not  obliged 
to  receive  as  baggage  the  trunk  of  one  who  does  not  go  by  the  same  train. 
Graffam  v.  Railroad  Co.,  67  Me.  234. 

421  Warner  v.  Railroad  Co.,  22  Iowa,  166.  See,  also,  Shaw  v.  Railroad  Co., 
40  Minn.  144,  41  N.  W.  548.  In  Collins  v.  Railroad  Co..  10  Cusb.  506,  It  ap- 
peared that  merchandise  was  accepted  as  baggage  by  the  carrier,  on  the 
understanding  that  the  owner  was  to  accompany  it.  The  owner,  however, 
went  on  a  subsequent  train.  The  goods  reached  their  destination,  but  were 
stolen  before  the  owner  arrived.  It  was  held  that  the  carrier  was  not  liable. 
The  court  said:  "It  is  easy  to  perceive  that  the  omission  of  the  plalntltT  to 
accompany  them,  as  he  informed  defendant's  agent  he  should,  contributed 
materially  to  the  loss,  and  that  what  might  have  been  a  very  proper  and  suit- 
able disposition  of  them  at  the  station  at  Lawrence,  under  the  reasonable  be- 
lief that  the  owner  of  them  was  present  to  take  charge  of  them,  might  have 
been  one  of  hazard,  and  exposure  to  loss,  in  his  absence." 


892  CARRIERS    OF    GOODS.  [Ch.   7 

Baggage  in  Custody  of  Passenger. 

It  has  already  been  seen  that  common  carriers  of  goods  are  liable 
as  insurers^  only  when  the  goods  have  been  delivered  into  their  ex- 
clusive custody.^^^  The  question  most  frequently  arises  in  respect 
to  baggage  retained  in  the  custody  of  the  passenger,  or  at  least  car- 
ried in  the  same  car  or  stateroom,  and  more  or  less  under  his  super- 
vision.     Three  classes  of  cases  may  be  considered: 

(a)  Where  the  passenger  retains  in  his  possession,  without  notice 
to  the  carrier,  articles  which  are  not  technically  baggage,  the  car- 
rier is  not  liable  for  their  loss,  even  by  negligence.*-^  Under  the 
ordinary  contract  of  carriage,  a  carrier  of  passengers  makes  no  con- 
tract and  enters  into  no  duty  as  to  articles  not  forming  part  of  a 
passenger's  ordinary  baggage  or  personal  equipment.  Beyond  its 
contract,  a  common  carrier  is  under  no  greater  obligations  to  pas- 
sengers than  the  rest  of  the  community.*^*  VvTiere,  therefore,  a  pas- 
senger carried  |16,000  worth  of  bonds  on  his  person,  without  notice 
to  or  knowledge  by  the  carrier,  and  they  were  violently  taken  from 
him  by  robbers,  without  gross  negligence  or  fraud  on  the  part  of 
the  carrier,  the  latter  was  held  not  liable.*"  So  where  a  passenger 
went  upon  defendant's  train,  carrying  |4,000  with  him,  and  during 
the  transit  the  train  fell  through  a  bridge,  and  the  passenger  and 
the  $4,000  were  burned  in  the  wreck,  the  carrier  was  held  not  lia- 

4-2  See  ante,  p.  356. 

*23  Hillis  V.  Railroad  Co.,  72  Iowa,  228,  33  N.  W.  643.  First  Nat.  Banls  v. 
Railroad  Co.,  20  Ohio  St.  259;  Weeks  v.  Railroad  Co..  72  N.  Y.  50. 

4  24  Henderson  v.  Railroad  Co.,  20  Fed.  430;  Id.,  123  U.  S.  fil,  8  Sup.  Ct.  60. 
A  railroad  company  is  not  liable  In  damages  for  a  loss  resulting  to  a  passen- 
ger from  its  refusal  to  stop  the  train  upon  which  he  was  riding,  short  of  a 
usual  station,  to  enable  him  to  recover  a  hand  bag  which  he  was  carrying 
with  him,  and  which  he  dropped  from  a  window  of  the  car  while  attempting 
to  lower  the  sash.    Henderson  v.  Railroad  Co.,  supra. 

42  6  Weeks  v.  Railroad  Co.,  72  N.  Y.  50,  56.  "It  is  apparent  that,  if  the  caiv 
rier  Is  liable,  In  such  case,  for  a  loss  by  robbery,  it  Is  liable  also  for  a  loss  by 
theft  by  strangers  (see  Abbott  v.  Bradstreet,  55  Me.  530),  or  for  loss  result- 
ing from  negligence  In  any  way,  no  matter  what  the  character  of  the  valu- 
ables, or  the  amount  of  them  borne  upon  the  person,  and  in  the  sole  care 
and  custody  of  the  passenger.  It  is,  then,  seen  that  the  carrier  of  passen- 
gers, against  Its  will,  with  no  knowledge  or  notice  of  the  charge  and  risk  put  up- 
on it,  becomes  more,  in  fact,  than  a  carrier  of  passengers,— it  becomes  an  'ex- 
press' carrier  with  unusual  burdens."     Id. 


§    84]  LIABILITY    AS    INSURERS    OF    UAGGAGK.  393 

ble.*-®  In  this  case  it  was  sought  to  hold  tlio  company  liable  on 
two  grounds:  (1)  Under  the  maxim,  "^ic  utere  tuo  ut  alienum  non 
laidas;"  and  (2)  as  a  common  carrier.  Scott,  J.,  pointed  out  that 
the  first  ground  of  liability  relied  upon  was  not  based  upon  any 
contract  between  the  parties,  nor  upon  any  liability  of  the  company 
as  a  common  carrier,  but  only  sought  a  recovery  on  the  ground  (hat 
the  defendant  negligently  so  conducted  its  business,  in  running  its 
train,  as  to  destroy  plaintiff's  property.  **Yet,"  said  he,  "it  pro- 
ceeds on  the  important  assumption  that  plaintiff's  money  was  law- 
fully where  it  was  at  the  time  when  the  catastrophe  occurred;  that 
is,  that  McElroy  was  a  passenger  on  defendant's  train  of  care,  had  a 
right  to  carry  the  money  with  him,  and,  without  notice  to  defend- 
ant, to  subject  it  to  such  perils  as  might  arise  from  the  negligence 
of  defendant's  servants  in  the  management  of  the  train.  Had  the 
money  not  been  in  the  defendant's  car,  it  would  not  have  been  siib- 
jected  to  the  peril  which  caused  its  destruction,  and  the  question 
whether  it  was  lawfully  there  necessarily  involves  a  consideration 
of  the  second  proposition.  Damage  resulting  from  the  negligence 
of  another  will  not,  in  all  cases,  constitute  a  cause  of  action.  Should 
A.,  through  negligence,  burn  his  own  house,  and  with  it  the  prop- 
erty of  B.,  placed  there  without  the  knowledge  or  consent  of  A.,  we 
apprehend  B.  could  not  hold  A.  liable  for  the  loss.  We  cannot, 
therefore,  ignore  the  fact  that  the  carrying  of  the  money  in  defend- 
ant's car  was  an  essential  element  in  the  circumstances  occasioning 
the  loss,  nor  the  fact  that  it  was  so  carried  by  a  person  whose  only 
right  to  be  there  w^as  in  virtue  of  his  character  as  a  passenger. 
*  *  *  We  do  not  call  in  question  the  right  of  a  passenger  to  car- 
ry about  his  person,  for  the  mere  purpose  of  transportation,  large 
sums  of  money,  or  small  parcels  of  great  value,  without  communi- 
cating the  fact  to  the  carrier,  or  paying  anything  for  the  transporta 
tion.  But  he  can  only  do  so  at  his  own  risk,  in  so  far  as  the  act  of 
third  persons,  or  even  ordinary  negligence  on  the  part  of  the  car- 
rier or  his  servants,  is  concerned.  For  this  secret  method  of  trans- 
portation would  be  fraud  upon  the  carrier,  if  he  could  thereby  be 
subjected  to  an  unlimited  liability  for  the  value  of  the  parcels  never 
delivered  to  him  for  transportation,  and  of  which  he  has  no  knowl- 

*««  First  Nat.  Bank  of  Greenfield  v.  Marietta  &  G.  R.  Co.,  20  Ohio  St.  259. 


"'94  CARRIERS    OF    GOODS.  [Ch.  7 

edge,  and  has  therefore  no  opportunit}^  to  demand  compensation  for 
the  risk  incurred.  No  one  could  reasonably  suppose  that  a  liabil- 
ity which  might  extend  indefinitely  in  amount  would  be  gratuitously 
assumed,  even  though  the  danger  to  be  apprehended  should  arise 
from  the  inadvertent  negligence  of  the  carrier  himself." 

(b)  When  proper  baggage  is  delivered  to  the  carrier,  but,  for  the  pas- 
senger's convenience,  it  is  transported  in  the  same  car  or  stateroom, 
where  he  can  have  access  to  it,  the  carrier  is  liable  as  an  insurer.* -^ 
Passengers  have  a  right  to  have  articles  required  for  present  use  in 
traveling  carried  with  them.  It  is  an  undoubtedly  well-settled  gen- 
eral rule  that  a  carrier  of  passengers  has  the  right  to  establish  any 
reasonable  regulation  which  he  considers  necessary  to  secure  the 

*27  Van  Horn  v.  Kermit,  4  E.  D.  Smith.  453;  Dunn  v.  Steam-Boat  Co.,  58 
Hun.  461.  12  N.  Y.  Supp.  406;  Mudgett  v.  Steamboat  Co.,  1  Daly,  151;  Gore 
V.  Transportation  Co.,  2  Daly,  254;  Macklin  v.  Steamboat  Co.,  7  Abb.  Prac. 
(N.  S.)  229;  Walsh  v.  The  H.  M.  Wright,  1  Newb.  494,  Fed.  Cas.  No.  17,115. 
But  see  Williams  v.  Keokuk  Co.,  3  Cent.  Law  J.  400;  Gleason  v.  Transporta- 
tion Co.,  32  Wis.  85.  In  Mudgett  v.  Steamboat  Co.,  supra,  it  was  held  that 
a  mere  supervision  of  one's  baggage  is  not  sufficient  to  discharge  the  car- 
rier. There  must  either  exist  the  animo  custodiendi  on  the  part  of  the  trav- 
eler, to  the  exclusion  of  the  carrier,  or  he  must  be  guilty  of  such  negligence  as 
discharges  the  latter  from  his  general  obligation.  Cohen  v.  Frost,  2  Duer,  335, 
was  criticised.  In  McKee  v.  Owen,  15  Mich.  115,  property  was  stolen  from  a 
stateroom  on  a  steamer  at  night.  There  was  no  evidence  of  negligence.  The 
court  was  evenly  divided  upon  the  question  of  defendant's  liability.  Cooley 
and  Christiancy,  JJ.,  concurred  in  holding  the  defendant  liable  as  a  carrier  to 
the  same  extent  as  an  innkeeper  for  a  similar  loss  by  a  guest  occupying  a  room 
at  his  inn.  Campbell,  .T.,  and  Martin,  C.  J.,  concurred  in  denying  liability.  Oth- 
er cases,  however,  hold  that  a  carrier  is  not  liable,  as  an  insurer,  for  baggage 
of  a  passenger  kept  in  his  own  possession  in  his  stateroom,  but  is  liable  only 
for  negligence,  like  tther  bailees  for  hire.  See  American  Steamship  Co.  v. 
Bryan,  S3  Pa.  St.  446.  The  conflict  is  upon  the  question  of  what  constitutes  a 
delivery  to  the  carrier.  See  post.  p.  396.  A  railway  company  insures  the  safe- 
ty of  each  passenger's  baggage,  carrying  such  baggage  being  merely  incidental 
to  the  contract  for  carrying  its  owner.  This  liability  continues,  even  when  the 
passenger  takes  his  baggage  into  a  sleeping  car,  and  gives  it  in  charge  of  the 
porter  thereof.  A  railway  company  cannot  limit  its  liability  by  any  special  ar- 
rangement with  the  sleeping-car  company,  because,  so  long  as  the  sleeper  forms 
part  of  the  train,  negligence  on  the  part  of  the  sleeping-car  agents  is  the  neg- 
ligence of  the  railway  company  running  its  tJ-ain.  Louisville,  N.  ife  G.  S.  R. 
Co.  V.  Katzenberger,  16  Lea,  380,  1  S.  W.  44.  If  a  person,  who  has  made  a 
contract  with  a  railroad  corporation  for  his  personal  transportation  from  one 


§    84]  MABII.ITY    AS    INSURERS    OF    BAGGAGE.  395 

safet}  of  the  baggage  of  his  passengers;  and  if  the  passenger  knows 
of  the  regulation,  and  his  baggage  is  lost  through  his  neglect  or  re- 
fusal to  comply  with  it,  the  carrier  is  not  answerable.  But  in  a  well- 
considered  opinion  by  Daly,  J.,  in  Macklin  v.  New  Jersey  Steamboat 
Co.,*'*  that  learned  judge  expressed  the  view  that  a  regulation  for- 
bidding a  passenger  upon  a  steamboat  from  taking  his  baggage  with 
him  into  his  stateroom  or  private  chamber,  except  at  his  own  risk,  is 
not  a  reasonable  regulation,  so  far  as  it  would  apply  to  light  l»a;/gage 
or  hand  satchels  containing  articles  required  for  present  use  in  travel, 
and  cannot  exonerate  the  carrier  from  liability  for  the  loss  of  such 
baggage,  when  taken  by  the  passenger  to  his  room  in  disregard  of  the 
regulation.  Upon  this  point  the  judge  said:  "When  a  passenge) 
pays  in  addition  for  a  separate  or  private  room,  or,  as  it  is  called,  a 
'stateroom,'  in  these  boats,  he  does  so  to  get  greater  and  better  accom- 
modation, and  for  the  privacy  and  security  which  it  affords.  If  In-  has 
simply  with  him  a  valise, — a  small,  portable  article,  coming  under 
the  denomination  of  'light  baggage,'  as  it  may  be  carried  in  the  hand, 
and  that,  from  its  limited  size,  usually  admits  of  little  else  than  the 
clothing  and  toilet  articles  required  for  present  use, — he  has  the  right, 
where  such  is  the  general  character  of  its  contents,  to  take  it  with 
him  into  the  chamber  provided  for  him,  and  where  he  is  to  pass  the- 
night;  and,  having  placed  it  there  and  locked  the  door,  the  obliga- 
tion is  upon  the  carrier  to  see  that  his  property  is  not  purloined  oi' 
stolen.  Any  regulation,  the  effect  of  which  would  be  to  prevent  him 
from  doing  this,  would  be  unreasonable.  It  is  essential  to  the  trav- 
eler's convenience  and  comfort,  and  the  law  would  not  descend  into 
the  particularity  of  insisting  that  he  should  open  the  valise,  and,  tak- 
ing out  of  it  exactly  what  was  the  requisite  for  the  night,  lock  it  ui>. 
and  then  take  it  and  deposit  it  in  the  baggage  room  for  safe-keep- 
ing." *2  9 

place  to  another,  ^takes  a  seat  Jn  n  gioppinr  mr  and  there_loses  an  artlcl(ij)f 
pprsnnni  hnt^gao-o.  through  the  pegligctice  of  a^Eerspn  in  charge  of  the  car. 
and  without  fault  on  his  own  part,  it  is  n..  'U'fense  to  an  action  against  the 
corporation  that  the  car  was  not  owned  by  the  defendantj_bnt  by  a  third  gor- 
son,  who,  by  a  contract  with  the  defendant,  provided  conductors  and  servants. 
iTThe^ absence  of  evidence  that  the  plaintiff  had  knowledge  of  these  (acLs-  Kin- 
sley V.  Railroad  Co.,  125  Mass.  54. 

428  7  Abb.  Prac.  (N.  S.)  229. 

*s»  See,  also,  Gleason  v.  Transportation  Co.,  32  Wis.  85,    Mudgett  v.  Stiaui- 


396  CARRIERS    OF    GOODS.  [Ch.  7 

Delivery  to  the  carrier,  actual  or  constructive,  is  always  essential, 
to  charge  the  carrier  with  liability.*^"  But  there  is  much  confusion 
and  conflict  in  the  cases  as  to  what  constitutes  a  sufficient  delivery. 
Even  as  to  proper  baggage,  if  the  passenger  retains  it  animo  cus- 
todiendi,  the  carrier  is  relieved  of  liability  as  an  insurer,  and  is  liable 
only  for  negligence,*^^  In  England  the  rule  was  stated  to  be  that 
such  circumstances  must  exist  as  "lead  irresistibly  to  the  conclu.:^ion 
that  the  passenger  takes  such  personal  control  and  charge  of  hiS  prop- 
erty as  altogether  to  give  up  all  hold  upon  the  company,  before  we 
can  say  the  company,  as  carriers,  are  relieved  from  their  liability  in 
case  of  loss."  *^'  This  language  was  used  in  a  case  where  the  carrier 
was  held  liable  for  the  loss  of  a  chronometer  placed  in  a  seat  in  a 
railway  carriage.  Cockburn,  G.  J.,  said  further:  "What  really  took 
place  appears  to  be  this:  That  by  desire  of  the  plaintiff  the  porter  of 
the  company  placed  this  article  in  a  carriage,  upon  a  particular  seat, 
which  w^as  to  be  reserved  for  the  plaintiff.  I  am  far  from  saying  that 
no  case  can  arise  in  which  a  passenger,  having  luggage  which,  by  the 
terms  of  the  contract,  the  company  is  bound  to  convey  to  the  place  of 
destination,  can  release  the  company  from  the  care  and  custody  of  an 
article  by  taking  it  into  his  own  immediate  charge;  but  I  think  tlic 
circumstances  should  be  very  strong  to  show  such  an  intention  on  the 
part  of  the  passenger,  and  to  relieve  the  company  of  their  ordinary 
liability.  And  it  is  not  because  a  part  of  the  passenger's  luggage, 
which  is  to  be  conveyed  with  him,  is,  by  the  mutual  consent  of  the 
company  and  himself,  placed  with  him  in  the  carriage  in  which  he 
travels,  that  the  company  are  to  be  considered  as  released  from  their 
ordinary  obligations.  Nothing  could  be  more  inconvenient  than  that 
the  practice  of  placing  small  articles,  which  it  is  convenient  to  tiie  pas- 
boat  Co.,  1  Daly,  151,  Gore  v.  Trausportatiou  Co..  2  Daly,  254.  The  views 
thus  expressed  are  criticised  iu  the  case  of  The  K.  E.  Lee,  2  Abb.  (U.  S.)  49, 
Fed.  Cas.  No.  11,G90. 

*3o  See  ante.  p.  356.  Blanchard  v.  Isaacs,  3  Barb.  388;  The  R.  E.  Lee,  2 
Abb.  (U.  S.)  51,  Fed.  Cas.  No.  11,090;  Tower  v.  Railroad  Co.,  7  Hill,  47.  Nei- 
ther a  corporation  nor  an  individual  is  responsible  for  neglect  in  protecting 
property  of  which  he  or  It  has  not  assumed  the  custody,  or  any  relation  of  duty 
or  trust  In  regard  to  it.    First  Nat.  Bank  v.  Ocean  Nat.  Bank,  GO  N.  Y.  278. 

*3i  Post,  p.  399. 

*82  Le  Conteur  v.  Railroad  Co.,  L.  R.  1  y.  B.  54.  Cf.  Kinsley  v.  Railroad 
Co.,  125  Mass.  54. 


§    84]  LIABILITY    AS    INSURKRS    OF    BAGUAGK.  39? 

senger  to  have  about  him,  in  the  carriage  in  which  he  travels,  should 
be  discontinued;  and  if  the  company  were,  from  the  mere  fact  of 
articles  of  this  description  being  placed  in  a  carriage  with  a  pas- 
senger, to  be  at  once  relieved  from  the  obligation  of  safe  carriage, 
it  would  follow  that  no  one  who  has  occasion  to  leave  the  carriage 
temporarily  could  do  so  consistently  with  the  safety  of  his  property. 
I  cannot  think,  therefore,  we  ought  to  come  to  any  conc-lufsiun  which 
would  have  the  effect  of  relieving  the  company,  as  carriers,  from  the 
obligation  to  carry  safely,  which  obligation,  for  general  convenience 
of  the  public,  ought  to  attach  to  them."  This  case  states  the  cor- 
rect rule.*'^  In  Pullman  Palace-Car  Company  v.  Freudenstein,*^* 
the  court  said:  "It  is  undoubtedly  the  law  that  where  a  passenger 
does  not  deliver  his  property  to  a  carrier,  but  retains  the  exclusive 
possession  and  control  of  it  himself,  the  carrier  is  not  liable  in  case 
of  a  loss;  as,  for  instance,  when  a  passenger's  pocket  is  picked,  or 
an  overcoat  or  a  satchel  is  taken  from  a  seat  occupied  by  him.*'^ 

483  "The  control  and  management  of  the  car  or  ot  the  train  by  the  servants 
and  employes  of  the  company  were  not  imijeded  or  Interfered  with;  and  where 
no  such  interference  is  attempted,  it  can  never  be  a  ground  for  limiting  the 
responsibility  of  the  carrier  that  the  owner  of  the  property  accompanies  it. 
and  keeps  a  watchful  lookout  for  its  safety."  Hannibal  &  St.  J.  R.  Co.  v. 
Swift,  12  WalL  262.  The  luggage  of  a  pa.ssenger  by  railway,  though  never  de- 
livered to  any  servant  of  the  company,  but  kept  by  the  passenger  during  the 
journey,  is,  nevertheless,  in  point  of  law,  in  the  custody  of  the  company,  so  as 
to  render  them  responsible  for  its  loss.  Great  Northern  Ky.  Go.  v.  Shepherd. 
8  Exch.  30. 

*34  3  Colo.  App.  540,  34  Pac.  578. 

486  Tower  v.  Railroad  Co.,  7  Hill,  47.  A  passenger  on  a  railway  train  en- 
tered a  car,  having  Ln  a  pocket  of  his  overcoat  a  sum  of  money,  and  cave  the 
overcoat  to  the  porter  without  mentioning  the  money,  and  the  porter  huug 
the  coat  in  the  passenger's  berth.  Held,  that  the  money  was  in  his  own  cus- 
tody and  at  bis  risk;  and  the  fact  that,  soon  afterwards,  an  accident  overturn- 
ed the  car,  and  on  the  passenger  making  his  way  ouu  he  told  the  porter  and 
brakeman  of  the  railway  company  that  the  money  was  in  the  car,  put  no  lia- 
bility for  the  money  on  the  company,  as  gratuitous  bailee  or  otherwise,  and  it 
was  not,  in  such  case,  responsible  for  the  loss  of  the  money.  The  comiKUiy 
had,  in  such  case,  a  right  to  notice,  in  the  outset,  of  this  money,  and  to  be  paid 
accordingly  if  responsibility  was  to  arise  in  case  of  accident;  and  the  occur- 
rence of  the  accident  did  not  change  the  rule  as  to  the  degree  of  care  requir- 
ed, even  on  the  theory  of  a  gratuitous  bailment.  Hillis  v.  liallroad  Co.,  72 
Iowa,  228,  33  N.  W.  G43. 


39S  CARRIERS    OF   GOODS.  [Ch.   7 

Upon  this  theory,  it  is  insisted  by  defendant  that  it  cannot  be  liable 
for  negligence,  inasmuch  as  the  clothing  and  effects  of  its  guests  are 
never  formally  delivered  to  it.  I  cannot  for  a  moment  accede  to  this 
proposition.  It  is  scarcely  necessary  to  say  that  a  person  asleep  can- 
not retain  manual  possession  or  control  of  anything.  The  invitation 
to  make  use  of  the  bed  carries  with  it  an  invitation  to  sleep,  and  an 
implied  agreement  to  take  reasonable  care  of  the  guest's  effects  while 
he  is  in  such  a  state  that  care  upon  his  own  part  is  impossible.  There 
is  all  the  delivery  which  the  circumstances  of  the  case  admit."  So 
it  is  reasonably  well  settled  in  the  case  of  carriers  by  water  that  the 
assignment  of  a  stateroom  to  a  passenger  is  "a  designation  of  the 
place  in  which  the  traveler  may  put  his  ordinary  baggage,"  and  a 
deposit  of  it  in  such  place  is  a  sufficient  delivery  to  charge  the  car- 
rier with  full  liability  for  its  safe  delivery.*^^ 

The  exemption  from  liability  for  losses  caused  by  the  act  of  the 
shipper  *^^  is  peculiarly  applicable  in  this  class  of  cases.  If  the  bag- 
gage is  lost  through  the  negligence  of  the  passenger  himself,  the  car- 
rier is  not  liable.  It  is  reasonable  to  presume  that,  with  respect  to 
articles  placed  in  the  car  with  the  passenger,  it  was  intended  by 
both  parties  to  be  under  the  latter's  personal  inspection  and  care; 
at  least,  during  that  part  of  the  journey  in  which  the  passenger 
might  reasonably  be  expected  to  be  in  the  carriage.*^^ 

*8  6  Hutch.  Carr.  §  700;  Mudgett  v.  Steamboat  Co..  1  Daly,  151;  Gore  v. 
Transportation  Co.,  2  Daly,  254;  Walsh  v.  The  H.  M.  Wright,  1  Newb.  494, 
Fed.  Cas.  No.  17,115;  Macklin  v.  Steamboat  Co..  7  Abb.  Prac.  (N.  S.)  229. 
But,  in  Gleason  v.  Ti-ansportation  Co.,  32  Wis.  85,  it  was  held  that  the  deposit 
of  baggage  in  an  unlocked  stateroom  was  not  a  delivery  to  the  carrier,  and 
therefore  the  latter  was  not  liable  for  its  loss  by  theft.  The  decision  might 
well  have  been  rested  on  the  passenger's  negligence.  The  court  said  the  de- 
cision might  have  been  otherwise  had  the  stateroom  been  locked.  It  is  dif- 
ficult to  see  what  bearing  that  fact  has  on  the  question  of  delivery.  See,  also, 
American  Steamship  Co.  v.  Bryan.  S3  Pa.  St.  44(;;  The  K.  E.  Lee,  2  Abb. 
(U.  S.)  49,  Fed.  Cas.  No.  11,690;  Del  Valle  v.  The  Richmond.  27  La.  Ann.  90; 
Williams  v.  Packet  Co.,  3  Cent.  Law  J.  400;  Abbott  v.  Bradstreet.  55  Me.  530; 
Clark  v.  Burns.  118  Mass.  275. 

437  Ante,  p.  3G5. 

43  8  Talley  v.  Railway  Co.,  L.  R.  G  C.  P.  44.  A  passenger  on  a  railroad,  on 
leaving  the  car  in  which  he  was  traveling,  at  a  station,  for  the  purpose  of 
getting  his  dinner,  inquired  of  an  employe  in  the  car  whether  his  baggage 
would  be  safe  if  left  in  the  car,  and  was  told  to  leave  it  there,  and  that  it  would 


§    84J  LIAIUI.ITY    A3    INSURERS   OF    BAGQAQE.  399 

(c)  With  respect  to  articles  which  would  be  proper  baggage  if 
delivered  to  the  carrier,  but  which  the  passenger  retains,  animo  cus- 
todiendi,  upon  or  about  his  person,  the  carrier  is  liable,  not  as  an 
insurer,  but  only  for  losses  caused  by  its  negligence.^ ^^  "Tlicre  is 
great  force  in  the  argument  that  where  articles  are  placed,  with  the 
assent  of  the  passenger,  in  the  same  carriage  with  him,  and  so  in 
fact  remain  in  his  own  control  and  possession,  the  wide  liability  of 
the  common  carrier  which  is  founded  on  the  bailment  of  the  goods 
to  him,  and  his  being  intrusted  with  the  entire  possession  of  them, 
should  not  attach,  because  the  reasons  which  are  the  foundation 
of  the  liability  do  not  exist.  In  such  cases  the  obligation  to  take 
reasonable  care  seems  naturally  to  arise,  so  that  when  loss  occurred 
it  would  fall  on  the  company  only  in  the  case  of  negligence  in 
some  part  of  the  duty  which  pertained  to  them."  ****      In  this  as 

be  perfectly  safe.  He  left  his  baggage  in  the  car,  and,  on  his  return,  found 
that  the  car  had  been  detached  from  the  train,  and  his  baggage  removed  to 
another  car,  where  he  could  have  a  seat.  On  going  to  this  car,  he  found  only 
part  of  liis  baggage.  No  notice  of  the  chaiigo  had  previously  been  given  to  him. 
Held,  that  this  evidence  would  warrant  a  finding  that  the  missing  baggage  wa.s 
lost  through  the  negligence  of  the  railroad  corporation.  Kinsley  v.  Railroad 
Co.,  125  Mass.  54. 

439  Clark  V.  Burns,  118  Mass.  275;  Pullman  Palace  Car  Co.  v.  Pollock.  l>  i 
Tex.  120,  5  S.  W.  814;  The  Crystal  Palace  v.  Vanderpool,  16  B.  Mon.  ;5<ii.'. 
Where  a  passenger  carried  his  coat  into  a  car  on  his  arm,  and  upon  leaving 
the  train  left  the  coat  in  his  seat,  the  carrier  was  held  not  liable.  "The  over- 
coat was  not  delivered  into  the  possession  or  custody  of  the  defendant,  which 
is  essential  to  its  liability  as  carrier.  ♦  *  •  If  it  were  under  any  obligation 
to  talie  charge  of  the  article  in  question,  •  *  ♦  ordinary  care  is  all  that  can 
be  exacted."  Tower  v.  Railroad  Co.,  7  Hill,  47.  The  fact  that  the  passong'-r 
retains  CTTStgdy  ^f  bi?  baggage  relieves  thu  rrjt  rier  merely  nf  his  pxtraordinarv 


liability, as  insurer.  He  slill  remains  liable  for  jifgli^t-iice.  Ainerieau  Stoaiu 
ship  Co.  V.  Bryan,  83  Pa.  St.  44G;  Kinsley  v.  Railroad  Co..  125  Mass.  54;  Wil- 
liams V.  Packet  Co.,  3  Cent.  Law  J.  400.  Thus,  a  carrier  has  been  held  liable 
for  baggage  stolen  from  his  stateroom  while  the  passenger  was  asleep,  wlure 
its  watchman  was  negligent.  American  Steamship  Co.  v.  Bi->nn,  supra.  Mon- 
ey carried  during  the  daj  in  a  passenger's  clothing,  and  pluced  under  hi.s  pil- 
low at  night,  is  not  in  the  custody  of  the  carrier  furnishing  him  a  berth  In  a 
sleeping  coach,  within  the  rule  that  a  carrier  is  liable  for  the  value  of  the 
effects  of  travelers  lost  while  in  its  custody  for  transportation.  Carpenter  v. 
Railroad  Co.,  124  N.  Y.  53,  26  N.  E.  277. 
440  Talley  v.  Railroad  Co.,  L.  R.  6  C.  P.  44. 


::\ 


400  CARRIERS   OF    GOODS.  [Cll.   7 

in  the  preceding  case,  negligence  of  the  passenger  causing  the  loss 
will,  of  course,  relieve  the  carrier  from  liability. 

All  that  is  said  in  all  the  cases  is  not  consistent  with  these  con- 
clusions. But,  when  considered  in  connection  with  their  facts,  the 
cases  justify  the  conclusions. 

Sleeping- Car  Companies. 

A  sleeping-car  company  is  not  a  carrier,  either  public  or  private. 
It  carries  no  one.  The  transportation,  not  only  of  sleeping-car  pas- 
sengers, but  of  the  sleeping  car  itself,  is  done  by  the  railway  com- 
pany. It,  and  not  the  sleeping-car  company,  contracts  for  the  car- 
riage, and  receives  the  compensation  therefor.  It  should  therefore 
assume  the  responsibilities  of  carrier.  Neither  is  a  sleeping-car 
company  an  innkeeper.**^  This  is  not  saying,  however,  that  a 
sleeping-car  company  is  under  no  liability  for  the  negligent  loss  or 
damage  of  its  passengers'  property.  As  laid  down  by  the  supreme 
court  of  Pennsylvania,**'^  it  is  the  duty  of  a  sleeping-car^ company  to 
use  reasonable  and  ordinary  care  to~prevenFintruders^pic^ng  pock- 
ets, and  carrying  off  the  clothes  of  passengers  while  asleep.**"* 
Whether  such  care  was  exercised  under  the  circumstances  is  a  ques- 
tion for  the  jury.  Where  the  regulations  require  a  watchman  to 
stay  in  the  aisle  of  the  car  continuously  until  danger  is  over,  and  he 
goes  out  of  the  aisle,  even  for  a  very  few  minutes,  and  during  that 

4*1  Pullman's  Palace  Car  C!o.  v.  Smith,  73  111.  3G0.    See  ante,  p.  262. 

4  44  Pullman  Car  Co.  v.  Gardner,  3  Penny.  (Pa.)  78. 

445  Efron  V.  Car  Co.,  59  Mo.  App.  641;  Chamberlaiu  v.  Car  Co.,  55  Mo.  App. 
474;  Pullman  Palace  Car  Co.  v.  Freudeusteiu.  3  Colo.  App.  540.  34  Pac.  578. 
A  sleeping-car  company  is  bound  to  use  ordinary  care  to  protect  its  pas-sengers 
from  the  theft  of  such  personal  effects  as  they  may  reasonably  carry  with 
them.  Lewis  v.  Car  Co.,  143  Mass.  267,  9  N.  E.  615.  And  see  Pullman  Palace 
Car  Co.  v.  Pollock,  69  Tex.  120,  5  S.  W.  814;  Stevenson  v.  Car  Co.  (Tex.  Civ. 
App.)  26  S.  W.  112;  Pullman  Palace  Car  Co.  v.  Gavin,  93  Tenn.  53.  23  S.  W. 
70.  A  sleeping-car  company,  so  far  as  it  renders  service  similar  in  kind  to  that 
of  an  innkeeper,  is  subject  to  the  same  liabilities.  Pullman  Palace  Car  Co. 
V.  Lowe,  28  Neb.  239,  44  N,  W.  226.  Where  a  passenger  in  a  sleeping  car 
places  an  article  of  wearing  apparel  in  the  care  of  the  porter,  and  it  is  stolgp 
from  the  car,  the  sleeping-car  company  is  liable  therefor.  Id.  A  passenger 
riding  on  a  day  parlor  car  of  the  Pullman  Palace  Car  Company  cannot  recover 
from  such  company  for  the  loss  of  personal  effects  which  she  has  retained  un- 
der her  own  personal  control,  where  her  own  negligence  has  contributed  to 
the  loss.    Whitney  v.  Car  Co.,  143  Mass.  243,  9  N.  E.  619. 


§   85]  LIABILITY    AS    ORDINARY    RAILEKS.  401 

ti:.ie  a  robbery  occurs,  if  the  jury  believe  that  if  he  had  been  in  his 
place  of  observation  it  would  not  have  occurred  without  detection, 
the  company  is  liable.  The  watching  must  be  continuous  and  ac- 
tive. It  may  be  proved,  too,  that  another  person  was  robbed  on 
the  same  car  on  the  same  night,  as  bearing  upon  the  question  of 
negligence.* 

SAME  —  LIABILITY  FOR  LOSS  OR  DAMAGE  — AS  ORDINARY 

BAILEES. 

86.  Common  carriers  are  liable,  as  ordinary  bailees  for 
hire,  for  all  losses  caused  by  their  failure  to  ex- 
ercise ordinary  care  and  skill,  and  for  anything 
amounting  to  an  absolute  breach  of  contract. 

Common  carriers,  like  other  bailees  for  hire,  are  liable  for  all 
losses  caused  by  their  failure  to  exercise  ordinary  care.  In  addi- 
tion to  this  liability  for  negligence,  public  policy  has  made  them  ab- 
solute insurers  of  the  safety  of  the  goods,  except  for  losses  caused 
by  certain  excepted  perils.**®  Ordinarily,  therefore,  the  question  of 
negligence  is  not  of  primary  importance,  as  the  carrier  is  liable  for 
losses,  even  by  inevitable  accident.  But  even  where  the  loss  is 
caused  by  an  excepted  peril,  as  the  act  of  God,  the  carrier  is  liable, 
if  his  negligence  contributed  thereto,**^  and  in  other  repects  the  lia- 
bility of  a  common  carrier  does  not  differ  from  that  of  ordinary 
bailees  for  hire.  "A  carrier's  duty  is  not  limited  to  the  transporta- 
tion of  goods  delivered  for  carriage.  He  must  exercise  such  dili 
gence  as  is  required  by  law  to  protect  the  goods  from  destruction 
and  injury  resulting  from  conditions  which,  in  the  exercise  of  due 
care,  may  be  averted  or  counteracted.      He  must  guard  the  goods 

♦Henderson  v.  Railroad  Co.,  20  Fed.  430. 

*46  See  ante,  p.  351. 

447  See  ante,  p.  359.  A  stipulation  exempting  tbe  carrier  from  linhlUty  for  loss 
by  fire  while  the  property  is  in  transit,  or  at  places  of  tran8shipm«Mit.  doi's  not 
relieve  the  carrier  from  liability  for  loss  occasioned  by  Its  necllRcnt  exposure, 
during  a  delay  in  transportation,  to  dangers  that  ordinary  foresiplit  slionld 
have  guarded  against,  as  where  cotton  on  barges  is  anchored  where  sparks 
from  passing  steamers  are  apt  to  set  it  on  fire.  Thomas  v.  Lancaster  Mills, 
71  Fed.  481. 

LAW  BAILil. — 26 


402  CARRIERS    OF    GOODS.  [Ch.   7 

from  destruction  or  injury  by  the  elements;  from  the  effects  of  de- 
lay; indeed,  from  every  source  of  injury  which  he  may  avert,  and 
which,  in  the  exercise  of  care  and  ordinary  intelligence,  may  be 
known  or  anticipated.***  Unknown  causes,  or  those  which  are  in- 
herent in  the  nature  of  goods,  and  cannot  be,  in  the  exercise  of 
diligence,  averted,  will  not  render  the  carrier  liable.  The  nature 
of  the  goods  must  be  considered,  in  determining  the  carrier's  duty. 
Some  metals  may  be  transported  in  open  cars.  Many  articles  of 
■commerce,  when  transported,  must  be  protected  from  rain,  sun- 
shine, and  heat,  and  must  have  cars  fitted  for  their  safe  transporta- 
tion.***     Live  animals  must  have  food  and  water,  when  the  dis- 

*<8  Hutch.  Carr.  §  320.    Where  goods  become  wet  In  transit,  and  would  be 
injured  If  allowed  to  remain  so,  it  is  the  carrier's  duty  to  dry  them.    Bird  v. 
Cromwell,  1  Mo.  81;    Chouteaux  v.  Leech,  18  Pa.  St.  224;    Notara  v.  Hender- 
son, L.  R.  5  Q.  B.  346,  L.  R.  7  Q.  B.  225.    It  may  be  the  duty  of  the  carrier 
to  apply  water  to  hogs  to  prevent  tbem  from  overheating.    Illinois  Cent.  R. 
•Co.  V.  Adams,  42  111.  474;    Toledo.  W.  &  W.  Ry.  Co.  \.  Thompson,  71  111.  434; 
Toledo,  W.  &  W.  Ry.  Co.  y,  Hamilton   76  111.  303.    See,  further,  as  to  duty  of 
carrier  with  reference  to  live  stocli,  Kiunick  v.  Railroad  Co.,  69  Iowa,  665,  29 
N.  W.  772;    Bills  v.  Railroad  Co.,  84  N.  Y.  5.    See  post,  cfote  450.    See,  also, 
ante,  pp.  370.  375.    "In  short,  the  conclusion  to  be  drawn  from  these  cases 
*    *    *    is  that,  whenever  the  situation  or  condition  of  the  goods,  from  accident 
or  from  any  cause,  becomes  such  as  to  require  a  special  care  or  attention,  the 
carrier  must  put  himself  in  the  place  ot  their  own*::-    and  do  for  them  all 
that  might  reasonably  be  expected  of  a  prudent  and  careful  person;    and,  if 
necessary,  it  would  be  his  duty  to  incur  any  expense  in  their  preservation 
which  their  value  would  justify,  and  which  their  condition  might  make  neces- 
sary."   Hutch.  Carr.  §  324.    See,  also.  The  Niagara  v.  Cordes,  21  How.  7;  Amer- 
ican Exp.  Co.  V.  Smith,  33  Ohio  St.  511.    But  a  carrier  is  not  bound  to  interrupt 
his  voyage  to  preserve  the  goods.    The  Lynx  v.  King,  12  Mo.  272.    But  see 
Notara  v.  Henderson,  L.  R.  5  Q.  B.  346,  L.  R.  7  Q.  B.  225.    Preference  may  be 
given  to  perishable  goods.    Peet  v.  Railroad  Co.,  20  Wis.  594;    Tierney  v.  Rail- 
road Co.,  10  Hun,  509,  76  N.  Y.  305;    Marshall  v.  Railroad  Co.,  45  Barb.  502, 
48  N.  Y.  600.    But  see  Great  Western  R.  Co.  v.  Burns,  60  111.  284.    Or  to  preser- 
vation of  life.    Michigan  Cent.  R.  Co.  v.  Burrows,  33  Mich.  6;    Pennsylvania 
R.  Co.  V.  Fries,  87  Pa,  St.  234. 

*49  Where  butter  shipped  to  New  Orleans  in  warm  weather  is  carried  in 
a.  common  car,  without  ice  or  other  protection,  the  carrier  is  liable  for  its 
deterioration  by  heat.  Beard  v.  Railway  Co.,  79  Iowa,  518,  44  N.  W.  800 
(citing  Hewett  v.  Railroad  Co.,  03  Iowa,  611,  19  N.  W.  790;  Sager  v.  Railroad 
Co.,  31  Me.  228;  Hawkins  v.  Railroad  Co.,  17  Mich.  57,  IS  Mich.  427;  Rail- 
road Co.  v.  Pratt,  22  Wall.  123;   Wing  v.  Railroad  Co.,  1  Hilt.   641;  Merchants' 


§    85]  I.IABII-ITY    AS    ORDINARY    BAII.KES.  103 

tance  of  transportation  demands  it.-"*"  Fruit,  and  some  other  pur 
ishable  articles,  must  be  carried  with  expedition,  aud  protection 

Dispatch  &  Transportation  Co.  v.  Cornforth.  3  Colo.  :i,so;  Boscowltz  v.  E.vprcKS 
Co.,  93  III.  523;  Stelnweg  v.  Railroad  Co.,  43  N.  Y.  123);  Alabama  it  V.  U.  Co. 
V.  Searles,  71  Miss.  744,  16  South.  255.  "Having  accepted  tlie  butter  for 
transportation,  defendant  cannot  escape  liability  for  not  safely  transporting 
It  on  the  ground  that  it  did  not  have  cars  sufUcient  for  the  purpose."  lii-anl 
V.  Railroad  Co.,  supra.  And  see  Helliwell  v.  Ilailroad  Co.,  7  Fed.  G8.  Where 
a  carrier  allows  ice  in  which  poultry  is  packed  to  melt,  without  renewing  It, 
he  is  liable  if  the  poultry  is  spoiled  by  heat.  Peck  v.  Weeks,  31  Conn.  145. 
See.  also,  Sherman  v.  Steamship  Co.,  26  Hun,  107. 

4  so  South  &  North  Alabama  R.  Co.  t.  Henlein,  52  Ala.  600.  Cf.  Great 
Northern  R.  Co.  v.  Swattield,  L.  R.  9  Exch.  132.  A  carrier  has  the  duty  to 
feed  and  water  stock  during  transportation,  and  cannot  transfer  It  to  the 
shipper  by  a  custom  requiring  him  to  go  along  on  the  same  train  with  the 
stock  to  feed  and  water  them  at  his  own  risk  aud  expense.     Missouri  I'ac. 

II.  Co.  V.  Fagan,  72  Tex.  127,  9  S.  W.  749.  Where  the  shipper  agrees  to  ac- 
company live  stock  and  attend  to  their  wants,  the  carrier  must  allow  hlni 
reasonable  opportunity  and  facilities  for  so  doing,  or  the  carrier  will  be  lia- 
ble. Smith  V.  Railroad  Co.,  100  Mich.  148,  58  N.  W.  651;  Dawson  v.  Railroad 
Co..  76  Mo.  514;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Pratt,  15  111.  App.  177;  Ft. 
Worth  &  D.  C.  R.  Co.  v.  Daggett,  87  Tex.  322.  28  S.  W.  525;  Nashville.  C.  & 
St.  L.  Ry.  Co.  V.  Heggie,  86  Ga.  210,  12  S.  E.  363;  Duvenick  v.  Railroad  Co., 
57  Mo.  App.  550;  Taylor,  B.  &  H.  Ry.  Co.  v.  Montgomery  (Tex.  App.)  16  S. 
W.  178;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Gann  (Tex.  Civ.  App.)  28  S.  W.  349.  "It 
is  the  duty  of  railway  companies  to  provide  suitable  places  for  feeding  and 
watering  live  stock  transported  over  their  lines;  and  if  this  is  not  done  they 
are  responsible  for  any  loss  entailed  or  that  occurs  from  such  neglect  or 
failure.  The  carrier  is  primarily  bound  to  provide  feed  and  water  for  stock 
shipped  over  its  line  of  railroad.      [Citing  Illinois  Cent.  R.  Co.  v.  Adams,  42 

III.  474;  Toledo,  W.  &  W.  Ry.  Co.  v.  Thompson,  71  111.  434;  Dunn  v.  Railroad 
Co.,  68  Mo.  268;  Harris  v.  Railroad  Co..  20  N.  Y.  232;  Cragln  v.  Railroad  Co.. 
51  N.  Y.  61.]  In  Missouri,  it  is  held  that  a  railroad  company  which  trans- 
ports live  stock  ought  not  only  to  have  proper  facilities  aud  machinery  lor 
unloading  the  stock  shipped  over  the  company's  line  of  road  whenever,  lu 
the  course  of  the  transit,  it  may  be  necessary  to  unload  them  for  exercise 
and  refreshment,  but  also  that  it  is  the  company's  duty  to  unload,  feed,  and 
water  them  at  their  journey's  end,  as  well  as  along  the  route.  If  there  be 
delay  in  delivering  them  to  the  consignee,  in  order  to  discharge  the  currier 
from  liability,  if  the  health  or  necessity  of  the  animals  require  this  to  be 
done,  Dunn  v.  Railroad  Co.,  68  Mo.  268."  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wil- 
helm  (Tex.  App.)  16  S.  W.  109.  See,  also,  Bryant  v.  Railroad  Co.,  68  Ga.  805 
A  car  containing  a  horse  should  be  set  on  a  side  track  at  the  request  of  the 


404  CARRIERS    OF    GOODS.  [Ch.  7 

from  frost*'^  So  the  carrier  must  attend  to  the  character  of  the 
goods  he  transports.  He  is  informed  thereof  by  inspection  of  the 
freight  bills,  or  by  other  papers  accompanying  the  shipment."  *^* 

It  is  the  duty  of  common  carriers,  during  the  transit,  to  use  all  the 
diligence  and  care  towards  the  goods  intrusted  to  them  that  prudent 
and  cautious  men  in  the  like  business  usually  employ  for  the  safety 
and  preservation  of  the  property  confided  to  their  charge.*^^  F  ,/ 
this  purpose  they  must  have  their  stations  and  yards  in  a  safe  condi- 
tion, so  that  those  who  use  them  by  the  carrier's  invitation  may  do 
so  without  injury  to  themselves  or  the  traflSc  they  bring  or  remove.*^* 
They  must  provide  proper  cars  and  vehicles  for  the  transportation, 
with  all  reasonable  equipments  and  servants  to  take  care  of  them.*°* 

owner  of  the  horse  or  his  agent,  when  the  persons  in  charge  of  the  tram 
are  informed  that  the  horse  is  frightened  by  the  transportation,  and  is  acting 
badly,  and  in  danger  of  being  liilled  or  hurt,  if  it  can  reasonably  be  done. 
Coupland  v.  Railroad  Co.,  61  Conn.  531,  23  Atl.  870.  There  is  no  obligation 
on  a  railroad  company  to  lay  out,  for  reloading,  a  car  hired  at  a  certain  pi'ice 
for  the  trip,  and  partly  filled  with  horses,  because  one  of  them  has  got  down 
in  the  car,  when  the  owner  is  with  them,  and,  under  the  contract,  is  charge- 
able with  their  care,  and  can,  if  he  chooses,  abandon  the  contract  altogether, 
or  make  a  new  one  for  a  longer  time.  Illinois  Cent.  R.  Co.  v.  Peterson,  68 
Miss.  454.  10  South.  43. 

*5i  Merchants'  Dispatch  &  Transportation  Co.  v,  Comforth,  3  Colo.  280; 
Tucker  v.  Railroad  Co.,  11  Misc.  Rep.  366,  32  N.  Y.  Supp.  1.  Contra,  where 
the  shipper  selects  the  vehicle.     Carr  v.  Schafer,  15  Colo.  48,  24  Pac.  873. 

*B2  Beard  v.  Railroad  Co.,  79  Iowa,  518,  44  N.  W,  800.  And  see  Chicago  & 
A.  R.  Co.  V.  Davis,  54  111.  App.  130. 

*63  Beal  V.  Railroad  Co.,  3  Hurl.  &  G.  337.  The  placing  of  a  car,  bedded 
with  straw,  containing  valuable  live  stock,  so  near  the  engine  that  sparks 
could  easily  ignite  the  straw,  constitutes  negligence.  McPadden  v.  Railroad 
Co..  92  Mo.  343,  4  S.  W.  689. 

*64  Rooth  V.  Railroad  Co.,  36  Law  J.  Exch.  83;  Mason  v.  Railroad  Co.,  25 
Mo.  App.  473;  Hutch.  Carr.  §  516  et  seq.  And  see  post,  p.  52.j.  Carriers  of 
live  stock  must  furnish  proper  yards  and  other  appliances  to  enable  the 
stock  to  be  received,  loaded,  unloaded,  and  delivered  to  the  consignee.  Cov- 
ington Stock- Yards  Co.  v.  Keith,  139  U.  S.  128,  11  Sup.  Ct.  461;  McCullough 
V.  Railroad  Co.,  34  Mo.  App.  23;  Cooke  v.  Railroad  Co.,  57  Mo.  App.  471; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Woods  (Tex.  Civ.  App.)  31  S.  W.  237.  A  carrier 
cannot  require  extra  compensation  for  such  facilities.  Covington  Stock- 
Yards  Co.  v.  Keith,  supra. 

♦  OB  Beckford  v.  Crutwell,  5  Car.  &.  P.  242.  Where  a  railroad  company  neg- 
ligently fails  to  provide  a  spark  consumer,  and  goods  are  damaged  by  sparks 


§    85]  LIABILITY    AS    ORDINARY    BAILKK8.  405 

They  must  have  their  through  communications  so  arranged  an  nol  to 
cause  undue  delay;  their  permanent  way  in  such  a  state  as  not,  by 
shaking,  to  malce  the  chafing  or  wear  and  tear  of  the  goods  uuduly 
severe.  They  must  have  proper  tarpaulins  and  coverings  to  protect 
the  goods  from  damage  by  exposure.  They  must  provide  cars  or 
vehicles  reasonably  fit  for  the  conveyance  of  the  particular  class  of 
goods  they  undertake  to  carry.*''"  And  they  will  be  liable  for  injury 
from  the  defects  of  a  car,  even  if  it  belongs  to  another  coiupany,  if 
t'Eey  adopt  it  for  the  purposes  of  their  own  transit.*"^  But  it  is  suHi- 
cient  if  the  company  provide  a  carriage  which,  without  extraordinary 
accident,  will  probably  perform  the  journey.*'^^  In  veliicles  used  for 
the  transit  of  animals,  the  floor  boards  should  be  sound,  and  the 
fastenings  to  the  doors  sufficient  to  properly  secure  them.*  The  com- 
pany must  take  care  not  to  forward  in  the  same  car  goods  which, 
from  their  proximity,  would  be  likely  to  damage  each  other.  Thus, 
they  would  be  liable  for  injury  to  flour  caused  by  the  etlluviuin  of 
spirits  of  turpentine,*^®  or  damage  to  cambric  goods  caused  by  sul- 
phuric acid,  if  stowed  near  together.*'^°  If  goods  are  of  a  clasti 
likely  to  be  injured  by  coming  in  contact  with  other  goods,  the  fact 

from  the  engine,  the  carrier  is  liable,  though  by  contract  it  was  exempt  from 
liability  for  loss  by  fire.  Steinweg  v.  Railroad  Co.,  43  N.  Y.  123.  See,  also. 
Empire  Transportation  Co.  v.  Wamsutta  Oil  Refining  &  Mining  Co..  G3  I'a. 
St.  14. 

458  Shaw  V.  Railroad  Co.,  18  Law  J.  Q.  B.  181,  13  Q.  B.  347;  Root  v.  Rail- 
road Co.,  83  Hun,  111,  31  N.  Y.  Supp.  357.  Where  fires  are  burning  along  the 
track.  It  Is  negligence  to  carry  cotton  on  open  cars.  Insurance  Co.  of  North 
America  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  3  McCrary.  233.  U  Fed.  Sll.  11  Fed. 
380.  Where  a  package  Is  too  large  for  a  closed  car.  It  Is  not  negligence  to 
carry  It  on  an  open  car,  provided  reasonable  diligence  Is  used  to  protect  It 
from  the  weather.  Burwell  v.  Railroad  Co.,  94  N.  C.  451.  Where  the  shipper, 
with  full  knowledge,  selects  the  vehicle,  the  carrier  is  not  liable  for  los.s 
eansed  by  Its  lnsufl3clency.     Carr  v.  Schafer,  15  Colo.  4S.  24  Pac.  873. 

457  Combe  v.  Railroad  Co.,  31  Law  T.  (N.  S.)  613. 

*68  Amies  v.  Stevens,  1  Strange,  128;  Blower  v.  Railroad  Co.,  L.  U.  7  C 
P.  655. 

♦  Betts  V.  Railway  Co.  (Iowa)  GO  N.  W.  023;  Union  Pac.  Ry.  Co.  v.  Raiuey, 
19  Colo.  225,  34  Pac.  986;  Selby  v.  Railroad  Co.,  113  N.  C.  588,  18  8.  K.  88; 
Haynes  v.  Railroad  Co.,  54  Mo.  App.  5S2. 

*B9  The  Colonel  Ledyard,  1  Spr.    530,  Fed.  Cafl.  No.  3,027. 

«eo  Alston  v.  Barring,  11  Exch.  822. 


406  CARRIERS    OF    GOODS.  [Ch.   7 

should  be  communicated  to  the  company;  otherwise,  they  will  not  be 
liable.*" 

The  company  must  use  the  ordinary  precautions  to  lessen  as  much 
as  possible  the  ordinary  wear  and  tear  of  goods;  as,  if  a  cask  of 
brandy  leak  on  the  journey,  they  must  take  steps  to  stop  the  leak 
when  it  comes  to  their  knowledge,  otherwise  they  will  be  liable  for  the 
loss;  *®^  and  though  not  liable  for  ordinary  deterioration  of  goods, 
in  quantity  or  quality,  from  inherent  infirmity,  yet  if  the  goods  re- 
quire airing  or  ventilation  during  the  journey,  for  the  purposes  of 
preservation,  as  fruits  and  such  like  articles  sometimes  do,  they  must 
do  what  is  reasonably  within  their  power  for  this  purpose.*®* 

The  company  must  obey  the  directions  of  the  owner  of  the  goods 
during  the  transit;  and  a  person  who  delivers  goods  to  a  railway 
company  to  carry,  directed  to  a  particular  place,  may  countermand 
the  direction  at  an}-  moment  of  the  transit,  and  demand  back  his 
goods, — at  least,  on  payment  of  the  carriage, — unless  perhaps  where 
the  unpacking  and  delivering  would  be  productive  of  much  incon- 
venience.*®* So,  also,  the  goods  must  be  earned  in  the  customary 
mode,  or  according  to  the  directions  of  the  shipper.*"     Where  the 

♦  81  Hutchinson  v.  Guion.  28  Law  J.  C.  P.  63,  5  O.  B.  (N.  S.)  149. 

*82  Beck  V.  Evans,  16  East,  244.  And  see  Cox  v.  Railroad  Co.,  3  Fost.  &  F. 
77.  Where  a  carrier  agreed  that  casks  containing  oil  should  be  wetted  twice 
a  week,  to  prevent  leakage,  he  is  liable  fo'*  leakage  if  he  fails  to  do  so,  al- 
though the  bill  of  lading  exempts  him  from  liability  for  leakage.  Hunnewell 
V.  Taber,  2  Spr.  1,  Fed.  Cas.  No.  6,880. 

463  Davidson  v.  Gwynne,  12  East,  381. 

««4  Scotthorn  v.  Railroad  Co.,  22  Law  J.  Exch.  121,  8  Exch.  341.  "A  carrier 
is  employed  as  bailee  of  the  person's  goods,  for  the  purpose  of  obeying  his  di- 
rections respecting  them,  and  the  owner  is  entitled  to  receive  them  back  at  any 
period  of  the  journey  when  they  can  be  got  at.  To  say  that  a  carrier  is  bound 
to  deliver  goods  according  to  the  owner's  first  directions  is  a  proposition  wholly 
unsupported  either  by  law  or  common  sense.  I  can  well  understand  the  case 
of  goods  being  placed  in  such  a  position  thai  they  cannot  be  easily  got  at. 
though  it  is  usually  otherwise."  Per  Martin,  B.,  in  Scotthorn  v.  Railroad  Co., 
supra.  The  owner  may  stop  the  goods  shoi*t  of  their  destination,  but  the  car- 
rier will  be  entitled  to  full  compensation.  Violett  v.  Stettinius,  5  Cranch,  C. 
C.  559,  Fed.  Cas.  No.  16,953;  Thompson  v.  Small,  1  C.  B.  328.  Where  full 
charges  are  tendered,  refusal  to  deliver  freight  at  en  intermediate  point  is 
a  conversion.    Straus  v.  The  Martha,  35  Fed.  313. 

*•»  Hutch.  Carr.  §  310. 


§    85]  LIABILITY    AS    ORDINARY    BAILEES.  407 

shipper  directs  how  the  goods  shall  be  carried,  acceptance  by  the 
carrier  implies  an  agreement  to  carry  in  that  manner;  and,  in  the 
absence  of  any  specific  directions,  the  implied  agreement  is  to  carry 
in  the  usual  manner.  A  disregard  of  the  directions,  or  a  carriiigr  in 
other  than  the  usual  manner,  renders  the  carrier  liable  as  an  in- 
surer.*" In  the  absence  of  express  stipulation,  the  contract  is  to 
carry  by  the  usual  route;  and,  as  has  been  seen,  a  deviation  imposes 
absolute  liability.  But,  where  the  carrier  has  an  option  as  to  routes, 
the  option  must  be  exercised  in  the  shipper's  interest.  Where  one 
route  is  dangerous,  and  the  other  safe,  a  choice  of  the  dangerous 
route  is  negligence. 

Of  course,  as  in  the  case  of  ordinary  bailees,  the  carrier  is  liable 
for  anything  amounting  to  an  absolute  breach  of  contract. 

466  Hutch.  Carr.  §  310;  Express  Co.  v.  Kountze,  8  Wall.  812;  Maprhoo  v. 
Railroad  Co.,  45  N.  Y.  514;  Dunsetb  v.  Wade.  2  Scam.  2S5;  Streeter  v.  Hor- 
lock,  1  Bing.  34;  Sleat  v.  Fagg,  5  Barn.  &  Aid.  342.  Shipping  directions  mark- 
ed on  the  package  must  be  obeyed.  Hastings  v.  Pepper,  11  Pick.  41;  The 
Star  of  Hope,  17  Wall.  651.  But  such  directions  are  not  binding  when  not 
called  to  the  carrier's  attention  or  inserted  iti  the  bill  of  lading.  The  New 
Orleans,  26  Fed.  44.  Where  goods  are  received,  properly  addressed,  the  car- 
rier must  forward  them  without  further  direction.  O'Nell  v.  Railroad  Co.,  (!0 
N.  Y.  138;  Rogers  v.  Wheeler,  52  N.  Y.  262.  By  violation  of  his  contracts,  the 
carrier  waives  all  exemptions  from  liability,  whether  created  by  law  or  special 
contract.  Johnson  v.  Railroad  Co.,  33  N.  Y  610;  Goodrich  v.  Thompson,  44 
N.  Y.  324;  Goddard  v.  Mallory,  52  Barb.  S7;  Maghee  v.  Railroad  Co..  45  N. 
Y.  514;  Sleat  v.  Fagg,  5  Barn.  &  Aid.  342.  Where  goods  were  to  be  carried 
by  "all  rail,"  but  were  shipped  on  a  steamer,  and  lost  in  a  wreck  of  the  ve.s- 
sel  in  a  storm,  the  carrier  is  liable.  Bostwick  v.  Railroad  Co..  45  N.  Y.  712. 
Where  goods  were  to  be  carried  by  steam  vessel,  but  the  carrier  send.s  them 
by  sail,  he  is  an  insurer  of  safety,  and  if  the  goods  are  lost  in  a  storm  he  la 
liable.  Wilcox  v.  Parmelee.  3  Sandf.  610.  Likewise,  wliere  the  agreement  is  to 
carry  goods  "by  sail  on  the  lake,"  and  they  are  sent  by  steam.  Merrick  r. 
Webster,  3  Mich.  268.  Where  a  carrier  violates  his  agreement  to  transport 
goods  without  change  of  cars,  he  waives  the  btuefit  of  restrictions  upon  his 
liability  contained  In  the  contract  of  shipmenu  Stewart  v.  Transportation  Co.. 
47  Iowa,  229. 


408  CARRIERS    OF    GOODS.  [Ch.  7 


SAME— LIABILITY  FOR  DELAY. 

86.  In  the   absence  of  special   contract,  common   carriers 

are  bound  only  to  use  reasonable  care  and  diligence 
in  effecting  the  transportation  without  delay,  in 
the  usual  course  of  business.  There  is  not  the  same 
absolute  liability  for  delay  as  there  is  for  loss  of, 
or  injury  to,  the  goods. 

87.  Where   the   carrier  specially  agrees   to  transport  and 

deliver  the  goods  -within  a  prescribed  time,  he  is 
absolutely  liable  for  failure  to  do  so. 

When  a  carrier  receives  goods  for  transportation,  the  implied  agree- 
ment is  that  they  are  to  be  carried  and  delivered  within  a  reasonable 
time.  But  the  carrier  is  not  an  insurer,  in  this  regard,  as  he  is  in 
the  case  of  loss  or  damage  to  the  goods.* °^  He  is  liable  only  in  case 
he  fails  to  exercise  reasonable  care  and  diligence  to  deliver  the  goods 
within  a  reasonable  time.  An  unreasonable  delay,  however,  does  not 
amount  to  a  conversion;  and  therefore  the  owner  is  bound  to  receive 
the  goods,  when  tendered  at  the  proper  place,  however  long  the  de- 
lay.*'* The  measure  of  damages  in  such  a  case  is  the  loss  proxi- 
mately  caused  by  the  delay^  not  the  value  of  the  goods.*^" 

What  is  a  Reasonable  Time. 

What  is  a  reasonable  time  within  which  to  make  delivery  is  a 
question  of  fact,  to  be  determined  with  reference  to  all  the  circum- 

**i  Scovill  v.  Griffith,  12  N.  Y.  509;  Mlehigan  Cent.  R.  Co,  ?.  Burrows,  33 
Mich.  6;  Empire  Transp.  Co.  v.  Wallace.  68  Pa.  St  302:  Kinnick  v.  Railroad 
Co.,  69  Iowa,  665,  29  N.  W.  772;  Savannah,  F.  &  W.  Ry.  Co.  v.  Pritchard,  77 
Ga.  412,  1  S.  E.  251;  Johnson  v.  Railway  Co.,  90  Ga.  810,  17  S.  E.  121.  But 
Bee  Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46  Miss.  458.  Goods  received  on  Sun- 
day must  be  transported  within  a  reasonable  time.  Philadelphia,  W.  &  B. 
R.  Co.  V.  Lehman,  56  Md.  209. 

*«8  Hutch.  Carr.  §  328;    Scovill  v.  Griffith.  12  N.  Y.  509 

*89  Such  as  deterioration  of  goods  or  loss  of  market.  Scovill  v.  Griffith,  12 
N.  Y.  509;  Ruppel  v.  Railway  Co.,  167  Pa.  St.  166  31  Atl.  478;  Hudson  T. 
Elailroad  Co.  (Iowa)  60  N.  W.  608;  Fox  v.  Railroad  Co.,  148  Mass.  220,  19  N. 
E.  222;  Pereira  v.  Railroad  Co.,  66  Cal.  92,  4  Paa  988;  Douglass  v.  Railroad 
Co.,  53  Mo.  App.  473;    Gulf,  C.  &  S.  P.  R.  Co.  v.  Hughes  (Tex.  Civ.  App.)  31 


§§   86-87]  LIABILITY    FOR    DELAY.  409 

stances  of  the  case,  such  as  the  distance  the  goods  are  to  be  carried, 
the  mode  of  transportation,  whether  by  land  or  water,  steam,  sail, 
or  other  motive  power;  the  weather;  the  condition  of  the  roads; 
the  season  of  the  year;   and  the  like.*'* 

Excuses  for  Delay. 

A  carrier  is  not  liable  for  damages  resulting  from  delay,  where  y^ 
the  delay  occurred  wholly  without  his  fault  or  negligence.*^ ^  Ac- 
cident or  misfortune,  though  not  inevitable,  nor  caused  by  the  act 
of  God,  will  excuse  delay.*^'  Thus,  though  common  carriers  are 
liable  absolutely  for  loss  or  damage  caused  by  mobs  or  "strikers," 
as  has  been  seen,*^^  they  are  not  liable  for  delay  so  caused.*^*      So 

8.  W.  411;  The  Caledonia,  157  U.  S.  124,  15  Sup.  Ct.  537;  Houseman  v.  Trans- 
portation Co.  (Mich.)  G2  N.  W.  290.  'The  shipper  may  recover  expenses  to 
which  he  has  been  put  by  the  delay.  Black  v.  Baxendale,  1  Exch.  410;  Calves- 
ton,  H.  &  S.  A.  Ry.  Co.  v.  Tuckett  (Tex.  Civ.  App.)  25  S.  W.  150;  Gulf.  C.  & 
S.  F.  Ry.  Co.  T.  Hume,  87  Tex.  211,  27  S.  W.  110. 

*7o  Coffin  V.  Railroad  Co.,  G4  Barb.  371);  Wibeit  v.  Railroad  Co..  12  X.  Y. 
245;  Nudd  v.  Wells,  11  Wis.  407;  Parsons  v.  Hardy,  14  Wend.  215;  Mich- 
igan Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  375;  Bennett  v.  Byram.  38  Miss. 
17;  East  Tennessee  &  G.  R.  Co.  v.  Nelson,  1  Cold.  272;  Gerhard  v.  Neese,  80 
Tex.  635;  McGraw  v.  Railroad  Co.,  18  W.  Va.  3G1;  PeierFOu  v.  Case,  21 
Fed.  885;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Heath,  41  Ark.  47(3;  Ormsby  v.  Il.ill- 
road  Co.,  2  McCrary,  48,  4  Fed.  70G;  St.  Clair  v.  Railroad  Co.,  SO  Iowa.  3o4. 
45  N.  W.  570.  Where  an  unusual  contingency  has  arisen,  which,  unexpect- 
edly, largely  increases  the  business,  and  thereby  prevents  the  handling  of 
freight  with  the  usual  promptness  and  dispatch,  the  criterion  of  reasonable 
diligence  is  not  the  usual  average  speed  in  ordinary  times,  but  the  average  run- 
ning time  under  the  extraordinary  and  unusual  circumstances  existing  at  the 
time.  Michigan  Cent.  R.  Co.  v.  Burrows,  33  Mich.  5.  For  cases  where  delay 
has  been  held  unreasonable,  see  Missouri  Pac.  Ry.  Co.  v.  Hall,  14  C.  C.  A. 
153,  G6  Fed.  8G8;  Cartwright  v.  Railroad  Co.,  S5  Ilun,  517.  o3  N.  Y.  Supp. 
147;    Davis  v.  Jacksonville  Southeastern  Line,  126  Mo.  69,  28  S.  W,  9G5. 

471  Ruppel  V.  Railway  Co.,  167  Pa.  St  166,  31  Atl.  478;  Phlhulelphia.  W.  &  B. 
R.  Co.  V.  Lehman,  56  Md.  209;  Taylor  v.  Railroad  Co.,  L  R.  1  G.  P.  385.  A  car- 
rier is  liable  for  neglisent  delay.  lUiwson  v.  Holland,  59  N.  Y.  611;  Michigan 
Southern  &  N.  I.  R.  Co.  v.  Day,  20  111.  875;  Rathbono  v.  Neal,  4  La.  Ann. 
563. 

47  2  Hutch.  Carr.  §  330. 

47  3  See  ante,  p.  3G4. 

♦  74  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Hollowell.  05  Tnd.  18S.  But  see  Bl.vk- 
stock  V.  Railroad  Co.,  20  N.  Y.  48.    Where  the  employes  of  a  railroad  company 


410  CARRIERS   OF   GOODS.  [Cll.   7 

collision  on  land*''"  or  water*''"  will  excuse  delay,  as  will  also  a 
heavy  snow,*^^  the  freezing  of  navigable  waters,*^*  the  low  stage  of 
a  river,*^'  an  unusual  press  of  freight,*^"  and  the  like.*^^  Under 
some  circumstances,  delay  may  even  be  a  duty,  as  where  the  safety 
of  the  goods  demands  it.  The  safety  of  the  goods  is  of  more  impor- 
tance than  a  speedy  delivery.  So  where  the  usual  route  of  a  ves- 
sel was  through  Long  Island  Sound,  but,  owing  to  the  passage  be- 
ing obstructed  by  ice,  the  master  went  around  by  the  open  sea, 
where  the  goods  were  lost  in  a  storm,  the  owners  were  held  liable 
on  the  ground  that  the  master  should  have  waited  until  the  safer 
route  was  open.*^* 

suddenly  refuse  to  work,  and  are  discharged,  and  delay  results  from  the  fail- 
ure of  the  company  to  promptly  supply  their  places,  the  company  is  liable 
for  any  damage  caused  by  such  delay;  but,  where  the  places  of  the  striking 
employes  are  promptly  supplied  by  other  competent  men,  and  the  strikers  then 
prevent  the  new  employes  from  doing  duty  by  lawless  and  irresistible  vio- 
lence, the  company  is  not  liable  for  delay  caused  solely  by  such  lawless  vio- 
lence. Pittsburgh  R.  Co.  v.  Hazen,  84  111.  36;  Pittsburgh,  C.  &  St.  L.  R.  Co. 
V.  HoUowell,  supra;  Greismer  v.  Railroad  Co.,  102  N.  Y.  563,  7  N.  E.  828; 
Gulf,  O.  &  S.  F.  Ry.  Co.  v.  Levi,  76  Tex.  337,  13  S.  W.  191;  Haas  v.  Railroad 
Co.,  81  Ga.  792,  7  S.  E.  628;  International  &  G.  N.  R.  Co.  v.  Tisdale,  74  Tex. 
8,  11  S.  W.  900;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Bennett,  89  Ind.  457;  Mis- 
souri Pac.  R.  Co.  V.  Levi  (Tex.  App.)  14  S.  W.  1062;  Southern  Pac.  R.  Co. 
V.  Johnson  (Tex.  App.)  15  S.  W.  121;  Bartlett  v.  Railroad  Co.,  94  Ind.  281. 
But  cf.  Read  v.  Railroad  Co.,  60  Mo.  199. 

47  0  Conger  v.  Railroad  Co.,  0  Duer,  375. 

4Ta  Parsons  v.  Hardy,  14  Wend.  215. 

4T7  Pruitt  V.  Railroad  Co.,  62  Mo.  527;  Ballentine  7.  Railroad  Co.,  40  Mo. 
491;    Briddon  v.  Railroad  Co.,  28  L.  J.  Exch.  51. 

*78  Bowman  v.  Teall,  23  Wend.  306;  Beckwith  v.  Frisby,  32  Vt.  559.  But 
see  Spann  v.  Transportation  Co.,  11  Misc.  Rep.  680,  33  N.  Y.  Supp.  566. 

479  Bennett  v.  Byram,  38  Mis.s.  17;    Silver  v.  Hale,  2  Mo.  App.  557. 

4  80  Wibert  v.  Railroad  Co.,  12  N.  Y.  245;  Michigan  Cent.  R.  Co.  v.  Burrows, 
83  Mich.  6.  But  see  Thomas  v.  Railway  Co.,  63  Fed.  200;  International  & 
G.  N.  R.  Co.  V.  Anderson,  3  Tex.  Civ.  App.  8,  21  S.  W.  691;  Louisville  &  N. 
R.  Co.  V.  Touart,  97  Ala.  514,  11  South.  756. 

481  See,  generally,  Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46  Miss.  458;  LIv- 
ing.ston  V.  Railroad  Co.,  5  Hun,  562;  Taylor  v.  Railroad  Co.,  L.  R.  1  C.  P.  385. 
A  carrier  need  not  incur  heavy  expense,  or  use  extraordinary  exertions,  to 
hasten  the  transportation  of  goods.  Reasonable  diligence  is  all  that  is  re- 
quired.   Empire  Transportation  Co.  v.  Wallace,  68  Pa.  St.  302. 

482  Crosby  v.  Fitch,  12  Conn.  410. 


§§    86-S7]  LIABILITY    FOR    DELAY. 


•Ill 


During  the  time  of  necessary  delay,  the  carrier  must  use  ordinary 
care  and  diligence  to  preserve  the  goods.*"  When  the  cause  of 
delay  is  removed,  he  must  promptly  complete  the  carriage.*"*  Un- 
avoidable delay  does  not  discharge  the  contract  of  carriage.*" 

Delivery  Within  Stipulated  Time. 

Where  a  carrier  agrees  to  transport  and  deliver  goods  witliin  a 
stipulated  time,  he  is  absolutelv  liable  if  he  fails  to  do  so.  Ue  is 
not  excused  by  circumstances  bevond  his  control,  such  as  the  act  of 
God  or  inevitable  accident.  This  is  on  the  ground  that  the  carrier 
has  insured  such  delivery,  by  failing  to  provide  against  any  cause 
of  delay  in  his  contract.**^  Thus,  an  extraordinary  freshet,  render- 
ing a  canal  impassable,  will  not  excuse  delivery  within  a  stipulated 
time;**^  and  it  is  no  defense  to  an  action  on  a  charter  party,  for 
not  sailing  on  the  voyage  towards  a  port  agreed  upon,  that  the  port 
was  in  a  state  of  blockade,  if  the  defendant  knew  that  fact  at  the 
time  of  entering  into  the  charter  party.***® 

488  Bowman  v.  Teall,  23  Wend.  30G;   Bennett  v.  P.yrnm.  38  :Miss.  17. 

*84  Hadley  v.  Clarke,  8  Term  R.  25'J;   Palmer  v.  Lorllard,  10  Johns.  342. 

*8B  Id.;  Hutch.  Carr.  §  335.  And  see  St.  Louis,  I.  M.  &  S.  iiy.  Co.  v.  Jones 
(Tex.  Civ.  App.)  29  S.  W.  695. 

*8e  Fox  V.  Railroad  Co.,  148  Mass.  220,  19  N.  E.  222;  Pereira  v.  Railroad 
Co.,  6G  Cal.  92,  4  Pac.  9S8;  Chicago  &  A.  R.  Co.  v.  Thrapp,  5  111.  App.  5i>2; 
Deming  v.  Railroad  Co.,  48  N.  H.  4o5;  Place  v.  Express  Co.,  2  Hilt.  19;  Har- 
rison V.  Railroad  Co.,  74  Mo.  364;  Pai'melee  v.  Wilks,  22  Barb.  539;  Hamiouy 
V.  Bingham,  12  N.  Y.  99;  Cant  well  v.  Express  Co.,  58  Ark.  487,  25  S.  W.  5');:. 
Cf.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Bryan  (Tex.  Civ.  App.)  28  S.  W.  98;  In- 
ternational &  G.  N.  Ry.  Co.  V.  Weutworth,  87  Tex.  311,  28  S.  \V.  277.  So. 
where  a  vendor  of  goods  agrees  absolutely  to  deliver  them  by  a  certain  time, 
impossibility  of  obtaining  them  will  not  excuse  him.  Gilpins  v.  Consequa, 
Pet.  C.  C.  85,  Fed.  Cas.  No.  5,452;  Youqua  v.  Nixon,  Pet.  C.  C.  221,  Fed.  Cas. 
No.  18,189.  Nor  impossibility  of  delivering  them.  Bryan  v.  Spurglu,  5 
Sneed,  681.  The  contract  may  be  implied  from  acceptance  of  the  goods  with 
knowledge  that  they  are  intended  to  be  at  their  destination  on  a  given  day. 
Chicago,  etc.,  R.  Co.  v.  Thrapp,  5  111.  App.  502;  Grindle  v.  Express  Co.,  67 
Me.  317;  Philadelphia,  W.  &  B.  R.  Co.  v.  Lehman,  50  Md.  209.  But  see 
United  States  Exp.  Co.  v.  Root,  47  Mich.  231,  10  N.  W.  351. 

*87  Harmony  v.  Bingham,  12  N.  Y.  99,  1  Duer,  209.  And  see  comment  on 
this  case  in  Hutch.  Carr.  p.  374,  note  1. 

488  Medeiros  v.  Hill,  8  Bing.  231.  See,  also,  Atkinson  v.  Ritchie,  10  East, 
530. 


412  CARRIERS    OF    GOODS.  [Ch.  7 

There  is  an  implied  condition,  in  contracts  of  this  liind,  that  the 
shipper  shall  not  himself  be  in  default  in  furnishing  the  goods  for 
shipment  at  the  time  agreed  upon.  If  the  shipper  is  in  default,  the 
carrier  is  excused  for  failure  to  deliver  within  the  stipulated  time.*** 

SAME— SPECIAL  PROPERTY  OF  CARRIER— RIGHT  OF 

ACTION. 

88.  Common  carriers  have  a  special  property  in  the  goods 
shipped,  and  may  maintain  an  action  for  any 
wrongful  interference  "with  their  possession. 

Like  other  bailees  for  hire,  common  carriers  have  a  special  prop- 
erty in  the  goods  shipped.  They  may  maintain  any  appropriate 
action  to  preserve  their  own  or  the  owner's  interest.  In  suing  for 
damages  for  conversion  of  or  injurytothe  property, the  carrier  may 
T^cfc^er  tl?e  Atire  damage,  as  ag^-inst  a  person  without  right  or 
title, — being  accountable  over  to  the  owner;  but  as  against  the  own- 
er, or  any  person  claiming  under  him,  the  carrier  can  recover  only 
his  own  interest  in  the  property.  The  rules  applicable  to  bailments 
in  general  are  equally  applicable  here.**"  If  the  carrier  pay  the 
owner  the  value  of  property  lost  or  injured  by  the  wrongful  act 
of  a  third  person,  he  will  be  subrogated  to  all  the  rights  of  the  owner 
against  such  wrongdoer,  and  may  recover  full  damages  for  his  own 
benefit.*'^  The  carrier  also  has  an  insurable  interest  in  the  prop- 
erty shipped,  and  may  insure  them  to  their  full  value,  not  only  for 
his  own  benefit,  but  also  for  the  benefit  of  the  shipper;  and,  even  as 
against  perils  for  which  he  is  not  liable,  he  may  insure  for  the  ben- 
efit of  the  owner.***     The  owner  may,  of  course,  insure  the  goods 

489  Hutch.  Carr.  §  319a;    Fowler  v.  Steam  Co.,  87  N.  Y.  190. 

*9o  The  Beaconsfield,  158  U.  S.  303,  15  Sup.  Ct.  860;  Ingersoll  v.  Van  Bokke- 
lln,  7  Cow.  670;    Little  v.  Fossett,  34  Me.  545;    Hayes  v.  Riddle,  1  Saudf.  248. 

*»i  Hagerstown  Bank  v.  Adams  Exp.  Co.,  45  Pa.  St.  419;  Hutch.  Carr.  J 
427. 

*»2  British  &  Foreign  Marine  Ins.  Co.  v.  Gulf,  C.  &  S.  F.  Ry.  Co.,  63  Tex. 
475;  Savage  v.  Insurance  Co., 36  N.  Y. 655;  Van  Natta  v.  Insurance  Co.,2  Sandf. 
490;  Eastern  R.  Co.  v.  Relief  Ins.  Co.,  98  Mass.  420;  Com.  v.  Hide  &  Leather 
Ins.  Co.,  112  Mass.  136.  Where  a  caiTier  insures  goods  for  full  value,  he  is 
trustee  of  the  owner  for  the  excess  over  his  own  interest.  Stillwell  v.  Staples, 
19  N.  Y.  401;   Waters  v.  Assurance  Co.,  5  El.  &  Bl.  870. 


§    90]  CONTRACTS    LIMITING    LIABILITY.  413 

for  his  own  benefit;  and  in  case  of  loss  the  carrier  will  not  be  sub- 
rogated to  the  rights  of  the  owner  against  the  insurance  company, 
and  cannot  hold  the  latter  for  contribution,  for  the  reason  that  the 
carrier  is  primarily  liable.*^'  Neither  can  the  carrier  require,  as  a 
condition  precedent  for  receiving  the  goods,  that  the  owner  insure 
them  for  the  carrier's  benefit.  If  the  contract  of  carriage  "con- 
tained a  provision  that  the  carrier  would  not  be  liable  unless  the 
owner  should  insure  for  its  benefit,  such  provision  could  not  be  sus- 
tained, for  that  would  be  to  allow  the  carrier  to  decline  the  dis- 
charge of  its  duties  and  obligations  as  such,  unless  furnished  with 
indemnity  against  the  consequences  of  failure  in  such  discharge. 
Refusal  of  the  owners  to  enter  into  a  contract  so  worded  would  fur 
nlsh  no  defense  to  an  action  to  compel  the  company  to  carry,  and 
submission  to  such  a  requisition  would  be  presumed  to  be  the  result 
of  duress  of  circumstances,  and  not  binding."  *"* 

SAME— SPECIAL  CONTRACT. 


5>^ 


89.  The  rights  and   liabilities  of  common  carriers  are  af- 

fected by  the  special  contract  of  carriage.     This  will 
be  considered  under  the  follow^ing  heads: 

(a)  Contracts  limiting  liability  (p.  413). 

(b)  Notices  limiting  liability  (p.  437). 

90.  CONTRACTS    LIMITING    LIABILITY  — By    express 

agreement,  common  carriers  may  limit  their  la- 
bility to  that  of  ordinary  bailees  for  hire;  but  they 
cannot  stipulate  against  liability  for  negligence, 
either  of  themselves  or  of  their  agents  or  servants 
(p.  414),  except: 
EXCEPTIONS— (a)  In  Illinois  the  carrier  may  stipulate 
against  the  ordinary,  but  not  the  gross,  negligence 
of  his  servants  (p.  421). 

*93  Gales  V.  Hailman,  11  Fa.  St.  515.  By  contract,  the  carrier  may  Lave  the 
benefit  of  insurance  effected  by  the  shipper.  Mercantile  Ins.  Co.  v.  Calebs, 
20  N.  Y.  173;  Jackson  Co.  v.  Boylston  Mut.  Ins.  Co.,  13U  Mass.  5US,  2  N.  E. 
103;  BriUsh  &  Foreign  Marine  Ins.  Co.  v.  Gulf,  C.  &.  S.  F.  K.  Co..  G3  Tex.  473; 
Rintoul  V.  Railroad  Co.,  17  Fed.  "JOo;    Hardman  v.  Brett,  37  Fed.  803. 

*8*  Inman  v.  Railway  Co.,  129  U.  S.  128,  U  Sup.  Ct  24i),  per  Fuller,  C   J. 


414  CARRIERS    OF    GOODS.  [Ch.   7 

(b)  In  New  York  the   carrier  may  stipulate  against  lia- 

bility for   negligence   of  his   servants,  but   not  for 
his  personal  negligence  (p.  421). 

(c)  In  a  few  states  contracts   limiting   liability  are  pro- 

hibited by  statute  (p.  424). 

(d)  In    most    states    contracts    limiting    liability    to    an 

amount  less  than  the  value   of  the   property  are 
valid  (p.  425). 

91.  Contracts  regulating  the  time  and  manner  of  present- 
ing claims  for  damages  are  valid,  provided  they  are 
reasonable  (p.  429). 

Limiting  Liahility  for  Loss  or  Damage. 

Common  carriers  had  no  power  originally,  at  common  law,  to 
limit  their  extraordinary  liability,  it  being  regarded  as  against 
public  policy  to  permit  them  to  do  so.*®"*  Subsequently,  however, 
the  rule  was  relaxed,  and  it  was  well  established  in  England  by 
the  beginning  of  the  present  century  that  common  carriers  might 
limit  their  liabilities,  either  by  general  notice  *^^  or  by  special 
contract,"*®^  even  to  the  extent  of  exempting  themselves  against 
liability  for  their  own  negligence.*®^  Subsequently  the  original 
common-law  rule  was,  in  a  measure,  restored,  by  the  railway  and 
canal  traffic  act,*®®  which  provided  that  no  contract  limiting  the 
liability  of  common  carriers  should  be  valid,  unless,  in  the  opinion 
of  the  court  or  judge  before  whom  the  question  arose,  it  was 
"just  and  reasonable." 

49B  Lawson,  Cont.  Carr.  §  24.  The  Doctor  and  Student,  Dialogue  2,  c.  28; 
Noys,  Maxims,  92;  Hide  v.  Proprietors  (17'J3)  1  Esp.  3G;  Kerr  v.  Willan  (1817) 
Holt.  645. 

*9«  Leeson  v.  Holt  (1816)  1  Starkie,  186;  Maving  v.  Todd,  Id.  72;  Niclaol- 
son  V.  Willan,  5  East,  507. 

•*»7  Anonymous  v.  Jackson,  Peake,  185;  Izett  v.  Mountain,  4  East,  371; 
Nicholson  v.  Willan,  5  East,  507;  Clarke  v.  Gray,  6  East,  564;  Harris  v.  Pack- 
wood,  3  Taunt.  264;  Beck  v.  Evans,  16  East,  244;  Munn  v.  Baker,  2  Starkie, 
255;   Wyld  v.  PIckford,  8  Mees.  «&  W.  443;   Carr  v.  Railway  Co.,  7  Exch.  707. 

*98  Maving  v.  Todd,  1  Starkie,  72;  Leeson  v.  Holt,  Id.  186;  Carr  v.  Rail, 
way  Co.,  7  Exch.  707.  See,  also,  remarks  by  Shipman,  J.,  in  The  Majestic, 
9  C.  C.  A.  161.  GO  Fed.  624. 

489  17  &  18  Vict.,  c.  31,  1854.     This  act  was  not  passed  until  the  judges  had 


§^    90-91]  CONTRACTS    LIMITING    LIABILITY.  415 

In  the  United  States  the  original  common-law  rule  was  never 
so  far  departed  from  as  it  was  in  England,  and  it  is  almost  uni- 
versally held  in  this  country  that  the  carrier  may  contract  against 
his  liability  as  an  insurer,  but  not  against  liability  for  damages 
caused  by  his  own  or  his  servants'  negligence."'"'      The  extraor- 

many  times  expressed  regret  that  the  original  common-law  rule  had  been 
abandoned.  See  Beck  v.  Evans,  IG  East,  244,  247,  per  Le  Blanc,  J.;  Harris 
V.  Packwood,  3  Taunt.  264,  271,  per  Mansfield.  C.  J.;  Brooke  v.  Pickwick.  4 
Bing.  218,  221,  per  Best,  C.  J.;  Down  v.  Fromont,  4  Camp.  40,  41,  per  Lord 
Ellenborougli.  See,  also,  Maving  v.  Todd,  1  Starkie,  1~,  74;  KeiT  v.  Willau, 
Holt,  645;    Smith  v.  Home,  Id.  643. 

600  South  &  N.  A.  R.  Co.  v.  Henlein.  52  Ala.  606,  56  Ala.  368;   East  Tonnes- 
see,  V.  &  G.  R.  Co.  V.  Johnston,  75  Ala.  596;   Little  Rock,  M.  R,  &  T.  Ry.  Co. 
V.  Talbot,  47  Ark.  97,  14  S.  W.  471;    Taylor  v.  Railroad  Co..  3'J  Ark.   148; 
Overland  Mail  &  Exp.  Co.  v.  Carroll,  7  Colo.  43,  1  Pac.  682;    Merchants'  Dis- 
patch &  Transportation  Co.  v.  Corufoi'th,  3  Colo.  280;    Union  Pac.  R.  Co.  v. 
Rainey,  19  Colo.  225,  34  Pac.  986;    Camp  v.  Steamboat  Co.,  43  Conn.  333; 
Welch  V.  Railroad  Co.,  41  Conn.  333;   Central  R.  Co.  v.  Bryant,  73  Ga.  722, 
726;    Berry  v.  Cooper,  28  Ga.  543;    Flinn  v.  Railroad  Co.,  1  Houst.  46l»,  502; 
Boscowitz  v.  Express  Co.,  93  111.  523;    Erie  Ry.  Co.  v.  Wilcox,  84  111.  230; 
Rosenfeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344;   Bartlett  v.  Railway  Co., 
94  Ind.  281;    Ohio  &  M.  Ry.  Co.  v.  Selby,  47  Ind.  471;    Sprague  v.  Railway 
Co.,   34    Kan.   347,   8   Pac.   465;     St.    Louis,   K.   C.    &   N.    Ry.    Co.   v.   Piper. 
13    Kan.    505;     Louisville    &   N.    R.    Co.    v.    Brownlee,    14   Bush    (Ky.)    590; 
Louisville,  C.  &  L.  R.  Co.  v.  Hedger,  9  Bush  (Ky.)  645;    New  Orleans  Mut. 
Ins.   Co.   V.   New   Orleans,   J.   &   G.   N.   R.   Co.,  20  La.  Ann.  302;    Roberts 
V.  Riley,  15  La.  Ann.  103;    Little  v.   Railroad,  66  Me.  239;    Willis  v.  Rail- 
way Co.,  62  Me.   488;    McCoy  v.  Transportation  Co.,  42  Md.  498;    Brolime 
V.  Express  Co.,  25  Md.  328;    Hoadley  v.  Transportation  Co.,  115  Ma.ss.  304; 
Pemberton  Co.  v.  New  York  Cent  R.  Co.,  104  Mass.  144,  151;   School  District 
in  Medfield  v.  Boston,  H.  &  E.  R.  Co.,  102  Mass.  552;    Grace  v.  Adams,  100 
Mass.  505;    Squire  v.  Railroad  Co.,  98  Mass.  239;    Feige  v.  Railroad  Co.,  62 
Mich.  1,  28  N.  W.  685;   Michigan  Cent.  R.  Co.  v.  Ward,  2  Mich.  538,  overruled 
in  Michigan  Cent.  R.  Co.  v.  Hale,  6  Mich.  243;  Boehl  v.  Railway  Co.,  44  Minn. 
191,  46  N.  W.  333;   Hull  v.  Railway  Co.,  41  Miun.  510,  43  N.  W.  391;    Orlt  v. 
Railway  Co.,  36  Minn.  396,  31  N.  W.  519;    Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 
Moss.  60  Miss.  1003,  1011;    Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels.  60  .Miss. 
1017;    New  Orleans,  St.  L.  &  C.  R.  Co.  v.  Faler,  58  Miss.  911;    McFadden  v. 
Railway  Co.,  92  Mo.  343,  4  S.  W.  689;   Ball  v.  Railway  Co.,  83  Mo.  574;   Cray- 
croft  V.  Railroad  Co.,  18  Mo.  App.  437;   Atchison  &  N.  R.  Co.  v.  Washburn.  5 
Neb.  117,  121;    Chicago,  I.  &  P.  R.  Co.  v.  Witty,  32  Neb.  275.  49  N.  W.  183; 
Rand  v.  Transportation  Co.,  59  N.  H.  303;    Moses  v.  Railroad  Co..  24  N.  U. 
71,  32  N.  H.  523;   Ashmore  v.  Transportation  Co.,  28  N.  J.  Law,  ISO;    Phift-r 


416  CARRIERS    OF    GOODS.  [Ch.   7 

dinary  liability  of  common  carriers  was  originally  imposed  by  pub- 
lic policy,  because  of  the  danger  of  collusion  between  the  carrier 
/'  and  robbers.""*     The  improved  state  of  society,  the  better  admin- 
istration of  the  laws,  and  the  rapidity  and  comparative  safety  of 
\[   modern  modes  of  transportation,  in  the  course  of  time,  rendered 
-   less  imperative  the  strict  application  of  the  rule  that  the  carrier 
^   must  be  responsible  at  all  events.'"^     Hence  a  contract  exempting 
A  a  carrier  from  liability  as  an  insurer  came  to  be  thought  a  just 
and   reasonable   one,   and   no   longer   against   public   policy.     But 
i   the  uneven  terms  upon  which  the  parties  deal,  often  enabling  the 
d   carrier  to  practically  dictate  his  own  terms,  still  makes  it  a  mat- 
I  ter  of  public  policy  that  some  limitation  be  put  upon  their  power 
'  to  contract  in  this  regard.     The  American  courts  have  been  al- 
most unanimous  in  denying  to  common  carriers  the  right  to  con- 
tract against  liability  for  negligence,  either  of  themselves  or  their 
\agents  or  employes.     The  able  opinion  of  Mr.  Justice  Bradley  in 

v.  Railway  Co.,  89  N.  C.  311;  Smith  v.  Railroad  Co.,  64  N.  C.  235;  Gaines  v. 
Insurance  Co.,  28  Ohio  St.  418;  United  States  Exp,  Co.  v.  Backman,  28  Ohio 
St.  144;  Union  Exp.  Co.  v.  Graham,  26  Ohio  St.  595;  Armstrong  v.  Express 
Co.,  159  Pa.  St.  640,  28  Atl.  448;  Merchants'  Dispatch  Transp.  Co.  v.  Block, 
86  Tenn.  392,  397,  6  S.  W.  881;  Coward  v.  Railroad  Co.,  16  Lea,  225;  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Trawick,  68  Tex.  314,  4  S.  W.  567  (under  statute);  Gulf, 
C.  &  S.  F.  Ry.  Co.  V.  McGown,  65  Tex.  640;  Houston  &  T.  C.  R.  Co.  v.  Burke, 
55  Tex.  323;  Mann  v.  Birchard,  40  Vt.  326;  Blumenthal  v.  Braiuerd,  38  Vt. 
402;  Virginia  &  T.  R.  Co.  v.  Sayers,  26  Grat.  328;  Wilson  v.  Railroad  Co., 
21  Grat  654,  671;  Brown  v.  Express  Co.,  15  W.  Va.  812;  Maslin  v.  Railroad 
Co.,  14  W.  Va,  ISO;  Abrams  v.  Railway  Co.,  87  Wis,  485,  58  N.  W.  780.  And 
see  Black  v.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244;  Thomas  v.  Rail- 
way Co.,  63  Fed.  200;  Hudson  v.  Railroad  Co.  (Iowa)  60  N,  W.  60S;  Railroad 
Co.  V.  Lockwood,  17  Wall.  357;  Railroad  Co.  v.  Manufacturing  Co.,  16  Wall. 
318,  328;  Railroad  Co.  v.  Pratt,  22  Wall.  123;  New  Jersey  Steam  Nav,  Co.  v. 
Merchants'  Bank,  6  How.  344;  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins. 
Co..  129  U.  S.  397,  9  Sup.  Ct.  469;  Thomas  v.  Lancaster  Mills,  71  Fed.  481.. 
A  stipulation  in  a  bill  of  lading,  providing  that  the  shipper  shall  insure  the 
goods,  and  that.  In  case  of  loss,  the  carrier  shall  have  the  benefit  of  the  In- 
surance, if  such  loss  "shall  occur  from  any  cause  which  shall  be  held  to 
render  this  line  or  Its  agents  liable  therefor,"  Is  a  contract  intended  to  protect 
the  carrier  against  the  consequences  of  his  own  negligence,  and  is  void. 
WUlock  V.  Railroad  Co..  106  Pa.  St.  184,  30  Atl.  948.    See  ante,  p.  412. 

501  Lawson,  Bailm.  §  138.    See  ante,  p.  352. 

B02  Hutch.  Carr.  §  226. 


§§    90-91]  CONTRACTS    LIMITING    MABILITY.  417 

Railroad  Co.  v.  Lockwood,^"  leaves  little  to  be  said  on  the  eub- 
jeet  <T:t  is  conteiidt'd,"  said  the  learned  justice,  "that,  thoii^'h  a 
carrier  may  not  stipulate  for  his  own  negligence,  there  is  no  good 
reason  why  he  should  not  be  permitted  to  stipulate  for  imnuinity 
for  the  negligence  of  his  servants,  over  whose  actions,  in  his  ab- 
sence, he  can  exercise  no  control.  If  we  advert  for  a  rnonicnt  to 
the  fundamental  principles  on  which  the  law  of  coiniiion  carriers 
is  founded,  it  will  be  seen  that  this  objection  is  iniHliuissible.  In 
regulating  the  public  establishment  of  common  carriers,  the  great 
object  of  the  law  was  to  secure  the  utmost  care  and  diligence  in 
the  performance  of  their  important  duties, — an  object  essential 
to  the  welfare  of  every  civilized  community.  Hence  the  common- 
law  rule,  w'hich  charged  the  common  carrier  as  an  insurer.  Why 
charge  him  as  such?  Plainly,  for  the  purpose  of  raising  the  most 
stringent  motive  for  the  exercise  of  carefulness  and  fidelity  in  his 
trust.  In  regard  to  passengers,  the  highest  degree  of  carefulness 
and  diligence  is  expressly  exacted.  In  the  one  case  the  securing 
of  the  most  exact  diligence  and  fidelity  underlies  the  law,  and  is 
the  reason  for  it;  in  the  other,  it  is  directly  and  absolutely  pre- 
scribed by  the  law.  It  is  obvious,  therefore,  that  if  a  carrier  stip- 
ulate not  to  be  bound  to  the  exercise  of  care  and  diligence,  but  to 
be  at  liberty  to  indulge  in  the  contrary,  he  seeks  to  put  off  the  es- 
sential duties  of  his  employment;  and  to  assert  that  he  may  do  so 
seems  almost  a  contradiction  in  terms.  Now,  to  what  avail  does  the 
law  attach  these  essential  duties  to  the  employment  of  the  com- 
mon carrier,  if  they  may  be  waived  in  respect  to  his  agents  and 
servants,  especially  where  the  carrier  is  an  artificial  being,  in- 
capable of  acting  except  by  agents  and  servants?  It  is  careful- 
ness and  diligence  in  performing  the  service,  which  the  law  de 
mands;  not  an  abstract  carefulness  and  diligence  in  proprietors 
and  stockholders  who  take  no  active  part  in  the  business.  To  ad- 
mit such  a  distinction  in  the  law  of  common  carriers,  as  the  busi- 
ness is  now  carried  on,  would  be  subversive  of  the  very  object 
of  the  law.  It  is  a  favorite  argument,  in  the  cases  which  favor 
the  extension  of  the  carrier's  right  to  contract  for  exemption  from 
liability,  that  men  must  be  permitted  to  make  their  own  agree- 

E08  17  Wall.  357. 

LAW  BAIL5I.— 27 


418  CARRIERS    OP    GOODS.  [Ch.  7 

ments,  and  that  it  is  no  concern  of  the  public  on  what  terms  an 
individual  chooses  to  have  his  goods  carried.  Thus,  in  Dorr  v. 
New  Jersey  Steam-Navigation  Company,^"*  the  court  sums  up 
its  judgment  thus:  'To  say  the  parties  have  not  a  right  to  make 
their  own  contract,  and  to  limit  the  precise  extent  of  their  own 
respective  risks  and  liabilities,  in  a  matter  no  way  affecting  the 
public  morals  or  conflicting  with  the  public  interests,  would,  in 
my  judgment,  be  an  unwarrantable  restriction  upon  trade  and 
commerce,  and  a  most  palpable  invasion  of  personal  right.'  Is 
it  true  that  the  public  interest  is  not  affected  by  individual  con- 
tracts of  the  kind  referred  to?  Is  not  the  whole  business  com- 
munity affected  by  holding  such  contracts  valid?  If  held  valid, 
the  advantageous  position  of  the  companies  exercising  the  busi- 
ness of  common  carriers  is  such  that  it  places  it  in  their  power 
to  change  the  law  of  common  carriers,  in  effect,  by  introducing  new 
rules  of  obligation.  The  carrier  and  his  customer  do  not  stand 
on  a  footing  of  equality.  The  latter  is  only  one  individual  of  a 
million.  He  cannot  afford  to  higgle,  or  stand  out  and  seek  redress 
in  the  courts.  His  business  will  not  admit  such  a  course.  He 
prefers,  rather,  to  accept  any  bill  of  lading  or  sign  any  paper 
the  carrier  presents;  often,  indeed,  without  knowing  what  the 
one  or  the  other  contains.  In  most  cases  he  has  no  alternative 
but  to  do  this,  or  abandon  his  business.  In  the  present  case,  for 
example,  the  freight  agent  of  the  company  testified  that  though 
they  made  forty  or  fifty  contracts  every  week  like  that  under 
consideration,  and  had  carried  on  the  business  for  years,  no  other 
arrangement  than  this  was  ever  made  with  any  drover.  And  the 
reason  is  obvious  enough:  If  they  did  not  accept  this,  they  must 
pay  tariff  rates.  These  rates  were  70  cents  a  hundred  pounds  for 
carrying  from  Buffalo  to  Albany,  and  each  horned  animal  was 
rated  at  2,000  pounds,  making  a  charge  of  $14  for  every  animal 
carried,  instead  of  the  usual  charge  of  $70  for  a  car  load;  being 
a  difference  of  three  to  one.  Of  course,  no  drover  could  afford  to 
pay  such  tariff  rates.  This  fact  is  adverted  to  for  the  purpose 
of  illustrating  how  completely  in  the  power  of  the  railroad  com- 
panies parties  are,  and  how  necessary  it  is  to  stand  firmly  by  those 

»04  4  Sandf.  136. 


§§    90-91]  CONTRACTS    LIMITINQ    IJABILITY.  119 

principles  of  law  by  which  the  public  interests  are  protected.  If 
the  customer  had  any  real  freedom  of  choice,  if  lie  had  a  rea- 
sonable and  practicable  alternative,  and  if  the  employinent  of  the 
carrier  w^ere  not  a  public  one,  charging  him  with  the  duly  «»f  ac- 
commodating the  public  in  the  line  of  his  eniploynient.  tlien,  if 
the  customer  chose  to  assume  the  risk  of  negligence,  it  could  with 
more  reason  be  said  to  be  his  private  affair,  and  no  concern  of  tlie 
public.  But  the  condition  of  things  is  entirely  different,  and  es- 
pecially so  under  the  modified  arrangements  which  the  carrying 
trade  has  assumed.  The  business  is  mostly  concentrated  in  a 
few  powerful  corporations,  whose  position  in  the  body  politic  en- 
ables them  to  control  it.  They  do,  in  fact,  control  it,  and  impose 
such  conditions  upon  travel  and  transportation  as  they  see  fit, 
which  the  public  is  compelled  to  accept.  These  circumstances  fur- 
nish an  additional  argument,  if  any  were  needed,  to  show  that 
the  conditions  imposed  by  common  carriers  ought  not  to  be  ad- 
verse, to  say  the  least,  to  the  dictates  of  public  policy  and  moral- 
ity. The  status  and  relative  position  of  the  parties  render  any 
such  conditions  void.  Contracts  of  common  carriers,  like  those 
of  persons  occupying  a  fiduciary  character,  giving  them  a  j)osi- 
tion  in  which  they  can  take  undue  advantage  of  the  persons  with 
whom  they  contract,  must  rest  upon  their  fairness  and  reason- 
ableness. It  was  for  the  reason  that  the  limitations  of  liability 
first  introduced  by  common  carriers  into  their  notices  and  bills 
of  lading  were  just  and  reasonable  that  the  courts  sustained 
them.  It  was  just  and  reasonable  that  they  should  not  be  re- 
sponsible for  losses  happening  by  sheer  accident,  or  dangers  of 
navigation  that  no  human  skill  or  vigilance  could  guard  against; 
it  was  just  and  reasonable  that  they  should  not  be  chargeable  for 
money  or  other  valuable  articles  liable  to  be  stolen  or  damaged, 
unless  apprised  of  their  character  or  value;  it  was  just  and  rea- 
sonable that  they  should  not  be  responsible  for  articles  liable  to 
rapid  decay,  or  for  live  animals  liable  to  get  unruly  from  fright, 
and  to  injure  themselves  in  that  state,  when  such  articles  or  live 
animals  became  injured  without  their  fault  or  negligence.  And, 
when  any  of  these  just  and  reasonable  excuses  were  incorporated 
into  notices  or  special  contracts  assented  to  by  their  customers, 
the  law  might  well  give  effect  to  them  without  the  violation  of 


420  CARRIEES    OF    GOODS.  [Ch.  7 

any  important  principle,  although  modifying  the  strict  rules  of  re- 
sponsibility imposed  by  the  common  law.  The  improved  state  of 
society,  and  the  better  administration  of  the  laws,  had  diminished 
the  opportunities  of  collusion  and  bad  faith  on  the  part  of  the 
carrier,  and  rendered  less  imperative  the  application  of-  the  iron 
rule  that  he  must  be  responsible  at  all  events.  Hence,  the  ex- 
emptions referred  to  were  deemed  reasonable  and  proper  to  be 
allowed.  But  the  proposition  to  allow  a  public  carrier  to  aban- 
don altogether  his  obligations  to  the  public,  and  to  stipulate  for 
exemptions  that  are  unreasonable  and  improper,  amounting  to 
an  abdication  of  the  essential  duties  of  his  employment,  would 
never  have  been  entertained  by  the  sages  of  the  law.  Hence,  as 
before  remarked,  we  regard  the  English  statute  called  the  'Rail- 
way and  Canal  Traffic  Act,'  passed  in  1854,  which  declared  void 
all  notices  and  conditions  made  by  common  carriers,  except  such 
as  the  judge  at  the  trial,  or  the  courts,  should  hold  just  and  rea- 
sonable, as  substantially  a  return  to  the  rules  of  the  common  law. 
It  would  have  been  more  strictly  so,  perhaps,  had  the  reasonable- 
ness of  the  contract  been  referred  to  the  law,  instead  of  the  in- 
dividual judges.  The  decisions  made  for  more  than  half  a  century 
before  the  courts  commenced  the  abnormal  course  which  led  to 
the  necessity  of  that  statute,  giving  effect  to  certain  classes  of  ex- 
emptions stipulated  for  by  the  carrier,  may  be  regarded  as  au- 
thorities on  the  question  as  to  w'hat  exemptions  are  just  and  rea- 
sonable. So  the  decisions  of  our  own  courts  are  entitled  to  like 
effect,  when  not  made  under  the  fallacious  notion  that  every  spe- 
cial contract  imposed  by  the  common  carrier  on  his  customers 
must  be  carried  into  effect,  for  the  simple  reason  that  it  was  en- 
tered into  without  regard  to  the  character  of  the  contract  and 
the  relative  situation  of  the  parties.  Conceding,  therefore,  that 
special  contracts  made  by  common  carriers  with  their  customers, 
limiting  their  liability,  are  good  and  valid  so  far  as  they  are  just 
and  reasonable  (to  the  extent,  for  example,  of  excusing  them  for 
all  losses  happening  by  accident,  without  any  negligence  or  fraud 
on  their  part),  when  they  ask  to  go  still  further,  and  to  be  excused 
for  negligence  (an  excuse  so  repugnant  to  the  law  of  their  foun- 
dation, and  to  the  public  good),  they  have  no  longer  any  plea  of 
justice  or  reason  to  support  such  a  stipulation,  but  the  contrary. 


§§    90-01]  CONTRACTS    LIMITING    I.IABIMTY.  421 

And  then  the  inequality  of  the  parties,  the  corapnlRion  under  which 
the  customer  is  placed,  and  the  obligations  of  the  carrirr  to  the 
public,  operate  with  full  force  to  divest  the  transa(ti(jn  of  validity." 

Same — Exceptions — Rule  in  Illinois. 

In  Illinois  it  has  been  held  that  common  carriers  may  contract 
for  exemption  from  liability  for  ordinary  negligence  on  the  part 
of  their  servants,  but  not  for  gross  or  willful  negligence,""  and 
the  same  doctrine  has  been  recognized  in  other  cases.'""  P>ut  it 
has  already  been  seen  that  it  is  extremely  doubtful  whether  the 
distinction  as  to  the  different  degrees  of  negligence  can  be  sua 
tained."^" 

Same — Rule  in  New  York. 

In  New  York  a  distinction  is  recognized  between  the  carrier's 
personal  negligence  and  the  negligence  of  his  servants  and  agents; 
he  being  permitted  to  contract  against  the  latter,"*"*  but  not  the 
former."^"®     The  distinction  is  recognized  even  in  the  case  of  cor- 

505  Amok!  V.  Railroad  Co.,  83  111.  273;  Illinois  Cent.  R.  Co.  v.  Morrison,  1!) 
111.  1.36;  Illinois  Cent.  R.  Co.  v.  Read.  37  111.  4S4;  Erie  R.  Co.  v.  Wilcox.  84 
III.  239;  Wabash  Ry.  Co;  v.  Brown,  152  111.  484,  39  N.  E.  273;  Adams  E.\p. 
Co.  V.  Haynes,  42  111.  89;  Illinois  Cent.  K.  Co.  v.  A(l;injs.  Id.  471:  Illinois 
Cent.  R.  Co.  v,  Smyser,  38  lU.  354.  Compare  Adams  Exp.  Co.  v.  Stettauere. 
61  111.  184;    Boskowitz  v.  Express  Co.  (111.)  5  Cent.  Law  .1.  58. 

60  6  Meiier  v.  Railroad  Co.  (S.  D.)  59  N.  W.  'M:>;  Al;ib:iniii  &  (I.  H.  Co.  v. 
Thomas,  83  Ala.  343,  3  South.  802.  The  Indiana  and  Alabama  courts,  how- 
ever, now  follow  the  ordinary  rule.    See  ante,  note  500. 

507  See  ante.  p.  24. 

508  Wilson  V.  Railroad  Co.,  97  N.  Y.  87;  Bissell  v.  R.Tilroad  Co..  25  N.  Y. 
442;  Perkins  v.  Railroad  Co.,  24  N.  Y.  196;  Wells  v.  Railroad  Co.,  Id.  181; 
Smith  V.  Railroad  Co.,  Id.  222.  The  decisions  in  New  York  have  not  been  uni- 
form. See  Wells  v.  Navigation  Co.,  8  N.  Y.  375;  Matruin  v.  Dlnsmore.  70  N. 
Y.  410;  Alexander  v.  Greene,  7  Hill,  533;  Dorr  v.  Navigation  Co.,  11  N.  Y. 
485;  Cole  v.  Goodwin,  19  Wend.  251;  Mynard  v.  Rnilnnd  Co..  71  N.  Y.  ISO. 
It  was  fii-st  held  that  common  carriers  could  not  limit  their  liability  by  con- 
tract Gould  v.  Hill,  2  Blill.  623;  Alexander  v.  Greene.  3  Hill.  9.  But  these 
cases  were  soon  overruled.  See  Parsons  v.  Mouteath,  13  Barb.  353;  Moore  v. 
Evans,  14  Barb.  524.  A  mere  notice  was  never  deemed  sufficient,  nolll.stei 
v.  Nowlen,  19  Wend.  234. 

500  Smith  V.  Railroad  Co..  24  N.  Y.  222.  Contra  Crasin  v.  Railroad  Co..  5) 
N.  Y.  61.  See,  also,  Hawkins  v.  Railroad  Co.,  17  Mich.  r>7;  IndlanapoUa  etc.. 
R.  Co.  V.  Strain,  81  111.  504;    Welsh  v.  Railroad  Co.    10  Ohio  St.  65. 


422  CARRIERS    OF    GOODS.  [Ch.  7 

porations.  "The  carrier  may,  and  generally  does,  act  by  agents, 
and,  in  the  case  of  a  corporation,  always  must  do  so.  But  never- 
theless there  is  such  a  thing  as  negligence  imputable  to  the  car- 
rier, whether  a  corporation  or  not,  as  distinguished  from  the  neg- 
ligence of  its  agents.  For  example,  a  railroad  company  is  bound 
to  provide  a  roadbed,  rails,  ties,  engines,  cars,  and  appliances  of 
all  kinds,  of  the  best  character  and  description  that  can  reasonably 
be  procured,  and  that  are  by  other  railroad  companies  recognized 
as  desirable  and  proper  to  be  used.  It  is  not  bound  to  try  ex- 
periments, but  it  is  bound  to  keep  up  with  the  progress  of  inven- 
tion, as  tested  by  experience;  and,  if  its  agents  fail  to  fulfill  the 
duty  thus  devolved  upon  the  carrier,  the  breach  of  this  duty  is 
treated  as  the  carrier's  personal  negligence."  ^^* 

The  argument  for  the  New  York  rule  is  well  stated  by  Wood- 
ruff, J.,  in  French  v.  Buffalo,  etc.,  R.  Co. i"^^^  "A  party  may  cer- 
tainly consent  to  place  the  instruments  and  agencies  which  he  is 
employing  in  his  business  at  the  service,  pro  hac  vice,  of  another, 
undertaking  to  set  them  in  motion  under  the  scheme  or  plan  of 
management  which  he  has  established,  and  say:  ^ou  shall  have 
the  benefit  of  my  enterprise,  my  machinery,  my  servants,  my  rules, 
my  regulations  and  scheme  of  administration;  but  I  propose  that 
you  shall  take  the  hazards  of  everything  but  my  own  fraud  or 
gross  negligence,  and  regard  me  in  no  respect  insuring  or  guar- 
antying the  fidelity  or  the  prudence,  diligence,  or  care  of  those 
servants,  whom  I  have  no  reason  to  distrust,  but  who  may,  out 
of  my  personal  presence,  neglect  their  duty,  or  prove  otherwise 
unfaithful.'  There  is  no  sound  reason  for  denying  that  if  a  con- 
tract is  made  on  those  terms,  and  presumptively  for  a  much  less 
compensation  to  be  paid,  it  shall  not  bind  the  parties.  It  may 
safely  be  assumed  that — in  this  country,  at  least — men  of  business 
are  shrewd  enough  to  take  care  of  their  own  interests,  and  that,  if 
a  party  consents  to  such  a  bargain,  it  is  because  it  is  for  his  in- 
terest to  do  so.  He  expects  to  make  or  save  money  by  relieving 
the  other  party  from  risks  which  he  is  willing  to  assume,  and  in 
general  his  expectation  is  realized.  There  is  neither  honesty  nor 
policy  in  permitting  him,  when  a  loss  happens  through  one  of  the 

•  10  Wheeler,  Mod.  Carr.  77.  »ii  'IS  N.  Y.  108. 


§§    90-91]  CONTRACTS    LIMITING    LIAniMTY.  423 

risks  he  consented  to  boar,  to  deny  the  binding,'  force  of  liis  con- 
tract This  is  now  the  practical  view  of  the  subject,  wliich  is  rec- 
ognized as  law."  °^' 

The  distinction  is  unsound.  '*Tn  the  nature  of  tilings,  every  cor- 
poration must  act  solely  through  its  agents;  and  that  their  powers 
and  duties  may  differ  in  degree,  it  seems  to  us,  should  make  no 
difference,  in  so  far  as  duties  and  liabilities  to  passengers,  whether 
free  or  paying  full  fare,  are  concerned.  The  true  inquiry,  at  last, 
is,  did  the  injury  result  from  the  negligence  of  any  agent  of  the 

512  In  a  dissenting  opinion,  delivered  in  Smith  v.  Railroad  Co.,  24  N.  Y.  222. 
Wright,  .T.,  said:  "Whether  a  contract  shall  be  avoided  on  the  pround  of  pub- 
lic policy  does  not  depend  upon  the  question  whether  It  is  beneficial  or  other- 
wise to  the  contracting  parties.  Their  personal  interests  have  nothing  to  do 
with  it,  but  the  Interests  of  the  public  are  alone  to  be  considered.  The  state 
is  interested  not  only  in  tlio  welfare  but  in  tlie  safety  of  its  c-itizt-ns.  To  itrf>- 
mote  these  ends  is  a  leading  object  of  government.  Parties  are  left  to  make 
whatever  contracts  they  please,  provided  no  legal  or  moral  obligation  Is  there- 
by violated,  or  any  public  interest  impaired;  but  when  any  effect  or  tendency 
of  the  contract  is  to  impair  such  interest,  it  is  contrary  to  public  policy,  and 
void.  Contracts  in  restraint  of  trade  are  void,  because  they  Interfere  with  the 
welfare  and  convenience  of  the  state;  yet  the  state  has  a  deeper  Interest  in 
protecting  the  lives  of  its  citizens.  It  has  manifested  this  Interest  unmistak- 
ably in  respect  to  those  who  travel  by  railroads.  Whether  a  carrier,  to  whoso 
exclusive  charge  the  safety  of  a  passenger  has  been  committed,  by  his  own 
culpable  negligence  and  misconduct,  shall  put  in  jeopardy  the  life  of  such 
passenger,  is  a  question  affecting  the  public,  and  not  the  party  alone  who  is 
being  carried.  It  is  said  that  the  passenger  should  be  left  to  make  whatever 
contract  he  pleases;  but,  in  my  judgment,  the  public  having  an  interest  lu 
his  safety,  he  has  no  right  to  absolve  a  railroad  company,  to  whom  be  com- 
mits his  person,  from  the  discharge  of  those  duties  which  the  law  ha.s  enjoined 
upon  it  in  regard  for  the  safety  of  men.  Can  a  contract,  then,  which  allows 
the  carrier  to  omit  all  caution  or  vigilance,  and  is.  In  effect,  a  license  to  be 
culpably  negligent,  to  the  extent  of  endangering  the  safety  of  the  passenger, 
be  sustained?  I  think  not.  Such  a  contract,  it  seems  to  me,  manifestly  con- 
flicts with  the  settled  policy  of  the  state  in  regard  to  railn  a.l  carriage.  Its 
effect.  If  sustained,  would  obviously  enable  the  carrlei  tu  avoid  the  duties 
which  the  law  enjoins  in  regard  to  the  safet>  of  men  encourage  negligence 
and  fraud,  and  take  away  the  motive  of  self-interest  on  the  part  of  sui-li  car- 
rier, which  is,  perhaps,  the  only  one  adequate  to  secure  the  highest  degree  of 
caution  and  vigilance.  A  contract  with  these  tendencies  is,  I  think,  contrary 
to  public  policy,  even  when  no  fare  is  paid."  See.  also,  able  dissenting  opinion 
of  Sutherland,  J.,  in  Wells  v.  Railroad  Co.,  24  X.  Y.  ISl,  ISG. 


424  CARRIERS   OP   GOODS.  [Ch.  7 

corporation  while  acting  within  the  scope  of  his  employment?  If 
a  corporation  may  relieve  itself  from  liability  to  a  passenger  for 
the  negligence  of  one  or  more  classes  of  agents,  why  may  it  not  for 
the  negligence  of  another  class?  All  of  a  corporation's  employ (Ss, 
from  the  highest  official  to  the  humblest  laborer,  are  but  agents. 
Some  of  them  are  necessarily  clothed  with  extensive  powers  to 
make  contracts  which  will  bind  the  corporation  in  reference  to 
many  matters,  and  to  control  its  operations,  while  others  have  but 
simple  labors  to  perform;  yet  none  of  them  are  the  corporation, 
clothed  with  its  full  power,  or  responsible  for  all  its  acts."  ^^^ 

Equally  unsound  is  the  distinction  in  the  case  of  individuals. 
It  is  the  carrier's  general  duty  to  carry  safely.  He  may  perform 
this  duty  by  himself,  or  by  his  agents.  The  public  policy  which 
will  not  permit  him  to  escape  liability  for  his  own  negligence  in 
the  performance  of  his  duty  would  equally  forbid  exemption  from 
liability  for  the  negligence  of  one  to  whom  he  had  intrusted  the 
performance  of  such  duty."*  In  either  case  the  master  is  liable, 
because  the  master's  duty  is  violated;  and  it  is  immaterial  whether 
the  violation  be  by  the  master  himself,  or  by  his  agents  acting  in 
the  course  of  his  employment.  Were  the  rule  otherwise,  any  one 
who  intrusts  the  management  of  his  business  to  agents  or  servants 
might  escape  all  liability  for  negligence  in  its  performance,  and 
corporations  which  can  act  only  through  agents  could  never  be 
made  liable  for  negligence.  In  Iowa,  and  some  other  states,  com- 
mon carriers  are  prohibited  by  statute  from  limiting  their  com- 
mon-law liability. '^^'^ 

813  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McGowan,  65  Tex.  640. 

514  "A  carrier  who  stipulates  not  to  be  bound  to  the  exercise  of  care  and 
diligence  seeks  to  put  off  the  essential  duties  of  his  employment.  Nor  can 
those  duties  be  waived  in  respect  to  his  agents  or  servants,  especially  where 
the  carrier  is  an  artificial  being,  incapable  of  acting  except  by  agents  and 
servants.  The  law  demands  of  the  carrier  carefulness  and  diligence  In  per- 
forming the  service,  not  merely  an  abstract  carefulness  and  diligence  in  pro- 
prietors and  stockholders,  who  take  no  active  part  in  the  business.  To  admit 
such  a  distinction  in  the  law  of  common  carriers,  as  the  business  is  now  car- 
ried on,  would  be  subversive  of  the  very  obji.'ct  of  the  law."  Liverpool  &  G. 
W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  9  Sup.  Ct.  469. 

B18  McClaln's  Code  Iowa,  §§  2007,  3371.  See  Houston  &  T.  O.  R.  Co.  y. 
Burke,  55  Tex.  323;    Mather  v.  Express  Co.,  9  Biss.  293,  2  Fed.  49;    Gulf,  O. 


§§    90-91]  CONTRACTS    LIMITING    LIABILITY.  425 

Same — Limiting  Amount  of  Liahihty. 

There  is  much  confusion  and  conflict  in  the  decisions  on  the 
question  as  to  whether  a  common  carrier  can  limit  his  liability 
to  an  amount  less  than  the  value  of  the  property,  as  against  a 
loss  through  negligence.  May  common  cai'riers  arbitrarily,  or 
by  contract,  place  a  value  upon  articles  received  for  carriage,  and 
in  this  way  seek  to  limit  the  amount  of  recovery  against  them  in 
case  of  loss?  It  is  obvious  that,  as  they  may  contract  against 
all  liability  in  cases  of  loss  without  their  fault,  they  may  contract 
for  the  amount  of  recovery  in  such  cases.  But  in  case  of  a  loss 
through  negligence  the  same  reasons,  at  first  view,  would  seem 
to  exist  against  contracts  limiting  the  amount  of  recovery  as  ex- 
ist against  contracts  for  total  exemption.  And  hence  some  courts 
have  held  such  contracts  void."^^  The  argument  in  favor  of  this 
view  runs  thus:     "The  carrier  cannot,  by  contract,  excuse  itself 

&  S.  F.  R.  Co.  V.  Booton  (Tex.  App.)  15  S.  W.  909;    Missouri  Pac.  U.  Co.  v. 
Vandeventer,  26  Neb.  222,  41  N.  W.  998. 

8i«  Oppenhelmer  v.  Express  Co.,  G9  111.  02;  Adams  Exp.  Co.  v.  Stettanere.  61 
111.  184;  Alabama  G.  S.  R.  Co.  v.  Little,  71  Ala.  611;  South  &  North  A.  R.  Co. 
T.  Henlein,  52  Ala.  606;  Mobile  &  O.  R.  Co.  v.  Hopkins,  41  Ala.  486;  Adams 
Exp.  Co.  V.  Harris,  120  Ind.  73,  21  N.  E.  340:  Chicago.  St.  L.  &  N.  O.  R.  Co 
V.  Abels,  60  Miss.  1017;  Southern  Exp.  Co.  v.  Mocn,  39  Miss.  822;  Cow.-\rd  v. 
Railroad  Co.,  16  Lea  (Tenn.)  225;  Georgia  Railroad  &  Banking  Co.  v.  Keener, 
93  Ga.  80S,  21  S.  E.  287;  Kuppel  v.  Railroad  Co..  167  Pa.  St.  166,  31  Atl.  478; 
Wabash  R.  Co.  v.  Brown,  152  111.  484,  39  N.  E.  273,  Kansas  City.  St.  J.  &  C. 
B.  R.  Co.  T.  Simpson,  30  Kan.  645,  2  Pao.  821;  United  States  Exp.  Co.  r. 
Backman,  28  Ohio  St.  144;  Black  v.  Transportation  Co..  55  Wis.  319.  13  N. 
W.  244;  Moulton  v.  Railway  Co.,  31  Minn.  85,  lb  N.  W.  497;  Louisville  & 
N.  R.  Co.  v.  Wynn,  88  Tenn.  320,  14  S.  W.  311;  Grogan  v.  Adams  Exp.  Co.. 
114  Pa.  St.  523,  7  Atl.  134;  Weiller  v.  Railroad  Co.,  134  Pa.  St.  310,  19  Atl. 
702;  Adams  Exp.  Co.  v.  Holmes  (I'a.  Sup.)  9  Atl.  106;  American  Exi).  Co.  v. 
Sands,  55  Pa,  St.  140;  Westcott  v.  Fargo,  61  N.  Y.  542;  Southern  Pac.  U.  C-i. 
T.  Maddox,  75  Tex.  300,  12  S.  W.  815.  See  Savannah  P.  &  W.  R.  Co.  v.  Aloat, 
20  S.  E.  219,  93  Ga.  803.  James,  J.,  In  an  unreported  case  lu  the  supreme 
court  of  the  District  of  Columbia,  quoted  In  Kansas  City,  St.  J.  &  C.  B.  II. 
Co.  V.  Simpson,  30  Kan.  645,  2  Pac.  821,  said:  "The  piiuciple  of  the  rule  Is 
that  any  agreement  which  operates  to  interfere  with  a  public  right,  touching 
the  character  and  good  faith  of  common  carriers,  la  an  agreement  against  pub- 
lic policy  and  welfare,  and  is  therefore  void;  and  Ae  an  agreement  that  hla 
negligence  shall  be  cheap  must  operate  In  this  way,  It  nece8S"rily  falls  within 
that  principle." 


426  CARRIERS    OF   GOODS.  [Ch.  7 

from  liability  for  the  whole  nor  any  part  of  a  loss  brought  about 
by  its  negligence.  To  our  minds,  it  is  perfectly  clear  that  the 
two  kinds  of  stipulation — that  providing  for  total,  and  that  pro- 
viding for  partial,  exemption  from  liability  for  the  consequences 
of  the  carrier's  negligence — stand  upon  the  same  ground,  and  must 
be  tested  by  the  same  principles.  If  one  can  be  enforced,  the 
other  can;  if  either  be  invalid,  both  must  be  held  to  be  so,  the 
same  considerations  of  public  policy  operating  in  each  case.  With 
great  deference  for  those  who  may  differ  with  us,  we  think  it 
entirely  illogical  and  unreasonable  to  say  that  the  carrier  may 
not  absolve  itself  from  liability  for  the  whole  value  of  property 
lost  or  destroyed  through  its  negligence,  but  that  it  may  absolve 
itself  from  responsibility  for  one-half,  three-fourths,  seven-eighths, 
nine-tenths,  or  ninety-nine  hundredths  of  the  loss  so  occasioned.  With 
great  unanimity,  the  authorities  say  it  cannot  do  the  former.  If 
allowed  to  do  the  latter,  it  may  thereby  substantially  evade  and 
nullify  the  law,  which  says  it  shall  not  do  the  former,  and  in  that 
way  do  indirectly  what  it  is  forbidden  to  do  directly.  We  hold 
that  it  can  do  neither.  The  requirement  of  the  law  has  ever  been, 
and  is  now,  that  the  common  carrier  shall  be  diligent  and  careful 
in  the  transportation  of  its  freight,  and  public  policy  forbids  that 
it  shall  throw  off  that  obligation  by  stipulation  for  exemption 
in  whole  or  in  part  from  the  consequences  of  its  negligent  acts,'"'^'' 
It  is  believed,  however,  that  the  power  of  common  carriers  to 
limit  their  liability,  even  in  cases  of  negligence,  to  an  amount 
less  than  the  value  of  the  property,  is  not  in  conflict  with  the  gen- 
eral rule  that  common  carriers  cannot,  by  contract,  limit  their 
liability  for  loss  occurring  through  their  negligence,''^®  but,  rather, 

6 IT  Louisville  &  N.  R.  Co.  v.  Wyun,  88  Tenn.  320,  14  S.  W.  311. 

618  "Such  a  contract,  fairly  entered  into,  leaves  the  carrier  responsible  for 
its  negligence,  and  simply  fixes  the  rate  of  freight,  and  liquidates  the  dam- 
ages. This  we  think  it  is  competent  for  the  carrier  to  do.  And,  where  the  re- 
duced value  is  voluntarily  fixed  by  the  shipper,  with  a  view  of  obtaining  a  low 
rate  of  freight,  without  any  knowledge  on  the  part  of  the  carrier  that  the 
property  was  of  greater  value,  it  would  be  a  fraud  upon  the  carrier  to  per- 
mit the  shipper  to  recover  a  greater  sum  than  that  fixed  by  him."  Harvey  v. 
Railroad  Co.,  74  Mo.  538.  McFadden  v.  Railroad  Co.,  92  Mo.  343,  4  S.  W.  689, 
Is  not  in  conflict  with  this  case.  In  the  latter  case  it  was  held  that  an  agree- 
ment, in  consideration  of  an  alleged  reduced  rate,  to  accept  a  limited  valua- 


§§   90-91]  CONTRACTS    LIMITING    LIABILITY,  427 

is  an  exception  to  it.  If,  without  any  representation  of  value  by 
the  shipper,  or  a  request  of  him  for  a  statement  of  value,  and  with- 
out notice  and  contract,  and  a  valuable  consideration,  the  car- 
rier should  place  a  value  upon  the  articles  received  for  carriage, 
that  would  not  bind  the  shipper."^"  In  such  case  he  would  clearly 
have  the  right  to  recover  the  full  value  of  the  articles  lost  by 
the  carrier.  If,  on  the  other  hand,  for  the  purpose  of  getting 
reduced  rates,  the  shipper  should  place  a  value  upon  the  article 
for  carriage,  or  if,  by  any  kind  of  artifice,  he  should  induce  the 
carrier  to  place  a  lower  value  upon  the  articles,  and  thus  get 
reduced  rates,  it  seems  to  be  settled  by  the  weight  of  autliority 
that  he  could  not  recover  beyond  the  value  so  fixed  by  him,  or 
the  value  which,  by  deceit,  he  caused  the  carrier  to  fix.""  To 
hold  otherwise  would  be  to  enable  the  shipper  to  take  advantage 
of  his  own  wrong.  Carriers  have  the  right  to  fix  their  charges 
according  to  the  value  of  the  article  to  be  carried.  The  greater 
the  value,  the  greater  the  responsibility  and  liability  in  case  of 
loss.  For  assuming  these,  the  carrier  is  entitled  to  charge  in- 
creased compensation."*"  jf  the  shipper  may,  by  false  state- 
ments or  artifice,  deceive  the  carrier  as  to  value,  and  thus  got 
lower  rates,  and  still  recover  from  the  carrier  the  full  value,  he 

tlon  for  the  property  In  case  of  its  loss  through  negligence  of  the  carrier,  Is 
not  bindiug  on  the  shipper  for  want  of  a  consideration,  where  the  rate  char- 
ged was,  in  fact,  the  regular  and  usual  rate.  Many  of  the  cases  cited  in  sup- 
port of  the  former  view  may  be  similarly  reconciled  witb  the  principles  suited 
In  this  paragraph,  when  their  facts  are  closely  considered. 
B19  Kansas  City,  St.  J.  &  C.  B.  K.  Co.  v.  Simpson,  30  Kan.  G45,  2  Tac.  Sill. 

520  Rosenfeld  v.  Railroad  Co.,  103  Ind.  121,  2  N.  E.  3-14;  Moses  v.  Railroad 
Co.,  24  N.  H.  71;  Durgin  v.  Express  Co.  (N.  H.)  20  Atl.  32S;  Hill  v.  Railroad 
Co.,  144  Mass.  284,  10  N.  E.  SoG;  Graves  v.  Railroad  Co.,  137  Mass.  33;  Stjulre 
V.  Railroad  Co.,  98  Mass.  239;  Magnin  v.  Diusmore,  70  N.  Y.  410;  Steers  v. 
Railroad  Co..  57  N.  Y.  1;  New  York  Cent.  R.  Co.  v.  FraloCf.  100  U.  S.  24; 
Black  V.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244;  Faciflc  Exp.  Co.  v. 
Foley,  4G  Kan.  457,  2G  Pac.  GG5;    Harvey  v.  Railroad  Co.,  74  Mo.  538. 

521  Lawson.  Carr.  88,  89,  and  cases  cited.  "It  is  the  right  of  the  canier 
to  require  good  faith  on  the  part  of  those  persons  who  deliver  goods  to  be 
carried,  or  enter  into  contracts  with  him.  The  care  to  be  exercised  In  trans- 
porting property,  and  the  reasonable  compensation  for  Its  carriage,  depend 
largely  on  its  nature  and  value;  and  such  persons  are  bound  to  use  no 
fraud  or  deception  which  would  mislead  him  as  to  the  extent  of  tbe  duties  or 


428  CARRIERS    OF    GOODS.  [Ch.  7 

is  enabled  to  consummate  a  wrong  upon  the  carrier  which  should 
not  be  sustained  by  the  courts. '^^^  To  hold  the  carrier  liable  in 
such  a  case  for  the  full  value  of  the  article,  beyond  the  represen- 
tations of  the  shipper,  would  seem  to  be  neither  just  nor  rea- 
sonable, and,  if  neither  just  nor  reasonable,  such  a  holding  is  not 
demanded  by  any  considerations  of  public  policy.^^^  This  is  the 
view  taken  by  the  supreme  court  of  the  United  States  in  the  lead- 
ing case  upon  this  subject.''^*  The  court  say:  "The  limitation  as 
to  value  has  no  tendency  to  exempt  from  liability  for  negligence. 
It  does  not  induce  want  of  care.  It  exacts  from  the  carrier  the 
measure  of  care  due  to  the  value  agreed  on.^^°  The  carrier  is 
bound  to  respond  in  that  value  for  negligence.  The  compensa- 
tion for  carriage  is  based  on  that  value.  The  shipper  Is  estopped 
from  saying  that  the  value  is  greater.  The  articles  have  no 
greater  value  for  the  purposes  of  the  contract  of  transportation 
between  the  parties  to  that  contract.  The  carrier  must  respond 
for  negligence,  up  to  that  value.  It  is  just  and  reasonable  that 
such  a  contract,  fairly  entered  into,  and  where  there  is  no  deceit 
practiced  on  the  shipper,  should  be  upheld.     There  is  no  violation 

the  risks  which  he  assumes.  It  is  just  and  reasonable  that  a  carrier  should 
base  his  rate  of  compensation,  to  some  extent,  upon  the  value  of  the  goods 
carried.  This  measures  his  risks,  and  is  an  impoi'tant  element  in  fixing  his 
compensation.  If  a  person  voluntarily  represents  and  agrees  that  the  goods 
delivered  to  a  carrier  are  of  a  certain  value,  and  the  carrier  is  thereby  in- 
duced to  grant  him  a  reduced  rate  of  compensation  for  the  carriage,  such 
person  ought  to  be  barred  by  his  representation  and  agreement.  Otherwise, 
he  imposes  upon  the  carrier  the  obligations  of  a  contract  different  from  that 
into  which  he  has  entered.  *  *  *  We  cannot  see  that  any  considerations 
of  a  sound  public  policy  require  that  such  contracts  should  be  held  invalid, 
or  that  a  person  who.  in  such  a  contract,  fixes  a  value  upon  his  goods,  which 
he  intrusts  to  the  cai-rier,  should  not  be  bound  by  his  valuation."  Graves 
v.  Railroad  Co.,  137  Mass.  33.  See  Dunlap  v.  Steamboat  Co.,  98  Mass.  371; 
Judson  v.  Railroad  Co.,  6  Allen,  48G. 

f'2  2  Graves  v.  Railroad  Co.,  137  Mass.  33;  Hart  v.  Railroad  Co.,  112  U.  S. 
331,  5  Sup.  Ct.  151. 

023  Rosenfeld  v.  Railway  Co.,  103  Ind.  121,  2  N.  B.  344. 

824  Hart  V.  Railroad  Co.,  112  U.  S.  331,  340,  5  Sup.  Ct.  151. 

028  See  Graves  v.  Railroad  Co.,  137  Mass.  33;  Squire  v.  Railroad  Co.,  98 
Mass.  239;  Rosenfeld  v.  Railroad  Co.,  103  Ind.  121,  2  N.  E.  344;  Hopkins  v. 
Westcott.  6  Blatchf.  64,  Fed.  Cas.  No.  6,692;  The  Aline,  25  Fed.  562;  The 
Hadji,  18  Fed.  459. 


§§    90-91]  CONTUACTS    LIMITING    UABII.ITY.  420 

of  public  policy.  On  the  contrary,  it  would  be  repuj^nant  to  the 
soundest  principles  of  fair  dealing,  and  of  the  freedom  of  con- 
tracting, and  thus  in  conflict  Avith  public  policy,  if  a  8hipi)er  should 
be  allowed  to  reap  the  benefit  of  the  contract  if  there  is  no  loss, 
and  to  repudiate  it  in  case  of  loss."  Tliere  is  no  injustice  in  re- 
stricting the  shipper's  claim  for  damages  to  the  value  he  places 
upon  his  property  for  transportation.  *T.f  the  plaintiff  obtained 
the  lowest  rate  of  freight  by  shijjping  his  horse  as  of  ordinary 
value,  it  is  not  unreasonable  that  his  recovery  should  be  re- 
stricted to  $200,  which  was  the  amount  of  the  risk  the  parties  uii 
derstood  the  plaintiff  paid  for,  and  the  defendant  assumed  as 
carrier."  "^^ 

But  where  there  is  an  absence  of  any  agreed  valuation  in  the 
contract,  and   the  limitation   is  merely  as  to  the   amount    of   rr 
covery  for  damages  caused  by  the  defendant's  negligence,  the  casi- 
comes  within  the  general  rule  to  the  effect  that  the  coinj)aiiy  can 
not  contract  for  exemption,  either  in  whole  or  in  part,  from  lia 
bility  for  the  negligence  of  itself  or  its  employes.'" 

Limiting  Time  and  Manner  of  Presenting  -Chims. 

Common  carriers  may,  by  special  contract,  require  any  claim 
for  damages  to  be  presented  within  a  given  time,  jtrovided  tlie 
time  allowed  be  reasonable.''^^  "This  is  a  very  reasonable  and 
proper  provision,  to  enable  the  defendants,  while  the  matter  is 

826  Duntley  v.  Railroad  Co.  (N.  H.)  20  Atl.  327.  See,  also,  Magnln  v.  Ulus- 
more,  62  N.  Y.  35;  Graves  v.  Railroad  Co.,  137  Mass.  33;  Hill  v.  Railroad 
Co..  144  Mass.  284,  10  N.  E.  83G;  Alalr  v.  Railroad  Co.,  53  Minn.  IGU.  t)4  N. 
W.  1072. 

027  Abrams  v.  Railway  Co.,  87  Wis.  485,  58  N.  W.  780;  Brown  v.  Steamship 
Co.,  147  Mass.  58,  16  N.  E.  717;  Boebl  v.  Railroad  Co.,  44  Minn.  lUl,  46  N.  \V. 
333;  McFadden  v.  Railroad  Co.,  02  Mo.  343.  4  S.  W.  GS;»;  Woillor  v.  R.iilroad 
Co.,  134  Pa.  St.  310,  19  Atl.  702;  Dickson  v.  Railroad  Co..  18  Q.  B.  Dlv.  17tl; 
Black  V.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244. 

028  Gulf.  C.  &  S.  P.  R.  Co.  V.  Trawick,  68  Tex.  314.  4  S.  W.  567;  Southorn 
Exp.  Co.  V.  Hunnicutt,  54  Miss.  5()(i;  SoutbtM-n  Exp.  Co.  v.  Caldwell.  21  Wall. 
264;  Weir  v.  Express  Co.,  5  Phlla.  355;  United  States  Exp.  Co.  v.  Harris. 
51  Ind.  127;  Soutbern  Exp.  Co.  v.  Glenn,  16  Lea,  472,  1  S.  W.  102;  I^wls  v. 
Railroad  Co.,  5  Hurl.  &  N.  867.  Similar  stipulations  contained  In  insuranct' 
policies  are  sustained.  Steen  v.  Insurance  Co..  89  N.  Y.  315.  Likewise  In 
telcgrapb  contracts.     Cole  v.  Telegrapb  Co..  33  Minn.  227.  TZ  N.  W.  3ii5. 


480  CARRIERS    OF    GOODS.  [Ch.   7 

Btlll  fresh,  to  institute  proper  inquiries  and  furnish  themselves 
with  evidence  on  the  subject.  The  defendants  do  a  large  busi- 
ness, and  to  allow  suits  to  be  brought  against  them,  without  such 
notice,  at  any  length  of  time,  would  be  to  surrender  them,  bound 
hand  and  foot,  to  almost  every  claim  which  might  be  made.  It 
would  be  next  to  impossible,  when  a  thousand  packages,  large 
and  small,  are  forwarded  by  them  daily,  to  ascertain  anything 
about  the  loss  of  one  of  them,  at  a  distance  of  six  months  or  a 
year."  ''^^  WTiat  is  a  reasonable  time  depends  upon  the  circum- 
stances of  each  case.°^°  Thus,  a  stipulation  requiring  a  consignee 
of  cattle  to  present  any  claim  for  damages  at  the  time  the  cattle 
were  received,  and  before  they  were  unloaded  and  mingled  with 
other   cattle,   was  held   reasonable  and  valid. ^^^     But   a   stipula- 

B20  Weir  V.  Express  Co.,  5  Phila.  355. 

0  3  0  The  following  periods  have  been  held  reasonable:  Ninety  days,  South- 
ern Exp.  Co.  V.  Caldwell,  21  Wall.  264.  Thirty  days,  Hirshberg  v.  Dinsmore, 
12  Daly  (N.  Y.)  429;  Smith  v.  Dinsmore,  9  Daly  (N.  Y.)  ISS;  Kaiser  v.  Hoey 
(City  Ct.  N.  Y.)  1  N.  Y.  Supp.  429;  Southern  Exp.  Co.  v.  Hunnicutt,  54 
Mass.  566;  Glenn  v.  Express  Co.,  86  Tenn.  594,  8  S.  W.  152;  Weir  v.  Express 
Co..  5  Phila.  355.  Five  days,  Chicago  &  A.  R.  Co.  v.  Simms,  18  111.  App.  68; 
Dawson  v.  Railroad  Co..  76  Mo.  514.  Sixty  days,  Thompson  v.  Railroad  Co.. 
22  Mo.  App.  821.  Seven  days,  Lewis  v.  Railway  Co.,  5  Hurl.  &  N.  867.  The 
following  periods  have  been  held  unreasonable:  Sixty  days  from  date  of 
contract,  Pacific  Exp.  Co.  v.  Darnell  (Tex.  Sup.)  6  S.  W.  765.  Thirty  days 
from  date  of  contract,  Adams  Exp.  Co.  v.  Reagan,  29  Ind.  21;  Southern  Exp. 
Co.  V.  Caperton,  44  Ala.  101.  Where  the  period  is  fixed  without  reference  to 
the  time  of  loss  or  length  of  journey,  it  is  unreasonable.  Porter  v.  Express 
Co.,  4  S.  C.  135;  Pacific  Exp.  Co.  v.  Darnell  (Tex.  Sup.)  6  S.  W.  765;  Southern 
Exp.  Co,  V.  Caperton,  44  Ala.  101.  But  see  Southern  Exp.  Co.  v.  Caldwell, 
21  Wall.  264.  And  cf.  Central  Vermont  R.  Co.  v.  Soper,  8  O.  C.  A.  341,  59 
Fed.  879.  What  is  a  reasonable  time  is  a  question  of  law  for  the  court. 
Heimann  v.  Telegraph  Co.,  57  Wis.  562,  16  N.  W.  32;  Browning  v.  Railroad 
Co.,  2  Daly  (N.  Y.)  117.  Failure  to  present  a  claim  within  the  stipulated  time 
is  not  a  bar  to  recovery.  If  the  failure  was  caused  without  the  owner's  fault. 
Glenn  v.  Express  Co.,  86  Tenn.  594,  8  S.  W.  152. 

tisi  Goggin  V.  Railroad  Co.,  12  Kan.  416.  Compare  Smith  v.  Louisville  & 
X.  R.  Co.,  86  Tenn.  198,  6  S.  W.  209.  As  to  what  Is  removing  or  interming- 
ling, see  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels,  60  Miss.  1017.  See,  gen- 
erally, The  Santee,  2  Ben.  519,  Fed.  Cas.  No.  12,328;  Rice  v.  Railroad  Co.,  63 
Mo.  314;  Sprague  v.  Railroad  Co.,  34  Kan.  347,  8  Pac.  465;  Owen  v.  Railroad 
Co.,  87  Ky.  626,  9  S.  W.  698. 


§§    90-91]  CONTRACTS    LIMITING    LIABILITY.  431 

tion  requiring  goods  to  be  examined  before  leaving  the  stalion, 
as  applied  to  a  ear  load  of  cotton,  is  not  reasonable.""  So.  like- 
wise, a  contract  regulating  the  manner  of  presenting  claims  is 
valid,  provided  it  is  reasonable."'  For  example,  a  contract  re- 
quiring notice  of  loss  to  be  made  in  writing,"*  or  at  the  [ilace 
of  shipment,  is  valid.""  The  limitation  may,  of  course,  be  waived 
by  the  carrier."*'* 

Consideration. 

A  contract  limiting  liability,  to  be  effectual,  must,  of  course, 
be  supported  by  a  consideration."^  As  common  carriers  are 
bound  to  carry  without  any  contract  limTTing  their  liability^_Lki:ir 
mere  agreement  to  carry  does  not  furnish  a  consideration  for  an 
agreement  to  limit  liability."'"  But  it  is  a  sufficient  consideration 
if  they  agree  to  carry  for  a  reduced  compensation  because  their 

6«2  Capehart  v.  Railroad  Co.,  81  JN\  C.  438.  See,  also,  Owen  v.  Ilailroad  Co., 
87  Ky.  626,  9  S.  W.  698;  Rice  v.  Railroad  Co.,  63  Mo.  314;  Sprague  v.  Rail- 
road Co.,  34  Kan.  347,  8  Pac.  4(55.  Such  a  stipulation  does  not  apply  to  latent 
injuries,  which  could  not  be  discovered  at  the  time  of  delivery.  Ornishy  v. 
Railroad  Co.,  4  Fed.  170,  706;    Capehart  v.  Railroad  Co.,  77  N.  C.  355. 

683  A  requirement  that  the  claim  be  verified  by  affidavits  Is  valid.  Blacli  v. 
Railroad  Co.,  Ill  111.  351.  Cf.  International  &  G.  N.  Ry.  Co.  v.  Underwood.  «2 
Tex.  21.  Notice  in  writing  to  a  paiticular  officer  may  be  required.  Dawson 
V.  Railway  Co.,  70  Mo.  514.  Cf.  Baltimore  &  O.  Exp.  Co.  v.  Cooper,  OU  Mis.s. 
558,  6  South.  827. 

884  Hirshberg  v.  Dinsniore,  12  Daly  (N.  Y.)  429;  Chicago  &  A.  R.  Co.  v. 
Simms,  18  III.  App.  68.  But  see  Smitha  v.  Railroad  Co.,  86  Tenn.  I!i8.  0  S. 
W.  209. 

6 3 f.  The  requirement  is  waived  where  the  carrier  has  no  officer  at  tlie  placo 
named  to  whom  notice  could  be  given.  Good  v.  Railroad  Co.  (Tex.  Sup.)  11 
S.  W.  S54;  Missouri  Pac.  Ry.  Co.  v.  Harris,  67  Tex.  100,  2  S.  W.  574. 

688  Chicago  &  E.  I.  R.  Co.  v.  Katzenbach,  118  Ind.  174,  20  N.  R.  709;  Rice 
V.  Railroad  Co.,  63  Mo.  314;  Owen  v.  Railroad  Co.  (Ky.)  9  S.  W.  811;  Hudson 
v.  Railroad  Co.  (Iowa)  60  N.  W.  008.  Receipt  and  consideration  of  an  uu\ tr- 
ifled claim  is  a  waiver  of  a  stipulation  requiring  a  verifled  one.  Waliash  R. 
Co.  V.  Brown,  152  111.  484,  39  N.  E.  273.  See.  also,  Bennett  v.  Railroad  Co., 
12  Or.  49,  6  Pac.  100. 

68  7  Lawson,  Bailm.  §  157;   Hutch.  Carr.  §  278. 

688  Bissell  V.  Railroad  Co.,  25  N.  Y.  442;  McMillan  v.  Railroad  Co.,  16  Mich. 
79;  German  v.  Railroad  Co.,  38  Iowa,  127.  See,  also,  Missouri.  K.  &  T.  Ry. 
Co.  V.  Carter  (Tex.  Civ.  App.)  29  S.  W.  505;  Kansas  Pac.  R.  Co.  v.  Royuold.s 
17  Kan.  251.    A  common  carrier  has  no  right  to  demand  of  a  shipper  a  waiver 


432  CARRIERS    OF    GOOD3.  [Cb.   7 

liability  is  limited."*  or  do  something  which  they  are  not  already 
bound  to  do,  such  as  receiving  a  passenger  on  freight  trains,'*' 
or  carrying  a  customer  free  of  charge.^*^  A  suflScient  considera- 
tion will  be  presumed,  in  the  absence  of  evidence  to  the  contrary.^** 
But  it  may  well  be  doubted  whether  such  a  presumption  is  nec- 
essary. If  the  rate  of  compensation  were  fixed  by  law,  so  that 
the  carrier  could  charge  neither  more  nor  loss  than  a  given  amount 
for  the  transportation  of  freight,  an  agreement  to  carry  for  such 
rate  would  not  be  any  consideration  for  an  agreement  on  the  part 
of  the  shipper  limiting  the  carrier's  liability.^*^  So  an  agreement 
to  carry  at  the  highest  rate  allowed  by  law  furnishes  no  consid- 
eration for  a  contract  limiting  the  carrier's  liability."*  But,  where 
the  carrier  might  have  charged  more  for  the  caniage,  the  agree- 
ment limiting  liability  is  supported  by  a  consideration,  although 
the  rate  charged  was  in  fact  the  usual  rate  charged  to  ail  persons 
alike. '^*'     The  undertaking  to  carry  at  the  agreed  rate  is  the  con- 

of  his  rights  as  a  condition  precedent  to  receiving  freight,  ilissouri  Pac.  Ry. 
Co.  v.  Fagan,  72  Tex.  127,  9  S.  W.  749. 

539  Bissell  V.  Railroad  Co.,  25  N.  Y.  442;  Nelson  v.  Railroad  Co.,  4S  N.  T. 
498;  Jennings  v.  Railway  Co.  (Sup.)  5  N.  Y.  Sapp.  140;  Dillard  v.  Railroad 
Co.,  2  Lea,  2SS.  A  stipulation  in  a  biU  of  lading  exempting  the  receiving  car- 
rier from  his  common-law  liability  for  the  loss  of  goods  while  in  its  warehouse, 
at  the  end  of  its  line,  and  before  delivering  to  the  connecting  carrier,  is  void, 
unless  there  is  a  special  consideration  for  such  exemption,  other  than  the  mere 
receipt  of  the  goods,  and  the  undertaking  to  carry  them.  Wehmann  t.  Rail- 
way Co..  5S  Minn.  22.  59  N.  W.  546. 

B*o  Arnold  v.  Railroad  Co.,  S3  111.  273. 

»*i  Bissell  V.  Railroad  Co.,  25  N.  Y.  442. 

B42  York  V.  Railroad  Co.,  3  WaJL  107;  Louisrille  &  X.  R.  Co.  v.  Oden.  80 
Ala.  3S. 

5*3  Hutch.  Carr.  §  228;  Wehmami  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546. 
Where  a  statute  requires  a  railroad  carrying  United  States  mail  to  carry  a 
postal  clerk  with  the  mail  without  charge,  a  limitation  of  the  carrier's  liability, 
contained  m  a  pass  issued  to  such  postal  clerk,  is  without  consideration  and 
void.    Seybolt  v.  Railroad  Co.,  95  N.  Y.  502. 

6**  See  cases  cited  in  note  538.  supra. 

•4»  In  Duvenick  v.  Railroad  Co.,  57  Mo.  App.  5-50,  It  was  said  that  a  re- 
duced rate,  to  be  a  consideration,  must  be  in  fact  a  reduced  rate  (citing  Mc- 
Fadden  v.  Railway  Co.,  92  Mo.  343,  4  S.  W.  689):  bur  that  it  did  not  foUow 
that,  because  the  rate  charged  m  a  given  contract  wa>  the  same  rate  charged 
everybody  who  shipped  under  like  contracts,  it  was  not  a  reduced  rate.    In 


§§    90-91]  CONTRACTS    LIMITING    LIABILITY.  433 

sideration  for  the  agreement  of  the  shipper,  as  the  liability  of  the 
shipper  to  pay  such  rate  was  the  consideration  for  the  agreement 
of  the  carrier  to  transport.  This  is  a  mutual  and  sufllcient  con- 
sideration; the  same  that  exists  in  the  ordinary  case  of  shipment 
of  goods,  with  or  without  a  special  contract."'  ''The  parties  be- 
ing left  free  to  make  their  own  contract,  and  having  agreed  that, 
in  consideration  of  the  payment  of  a  certain  price  by  on^,  cer- 
tain services,  upon  stipulated  terms  as  to  responsibility,  shall  be 
performed  by  the  other,  neither  can  allege  that,  as  to  him,  there 
was  no  consideration."  ^^ 

Construction. 

Contracts  limiting  liability  are  to  be  construed  strictly  against 
the  carrier."*^  All  doubts  and  ambiguities  will  be  resolved  in 
favor  of  the  shipper."***  Thus,  where  a  carrier  has  given  two  no- 
tices, he  is  bound  by  the  one  least  beneficial  to  himself.*'"  Spe 
cific  exemptions  will  not  be  enlarged  by  the  use  of  general  Ian 

this  case  It  appeared  that  the  reason  the  carrier  never  charged  any  other  rate 
was  because  he  always  took  shipments  under  contracts  containing  similar  lim- 
itations of  liability;  but  the  court  seemed  to  think  that  there  would  t>e  no 
consideration  unless  the  carrier  had  In  force,  and  for  practical  application,  a 
higher  rate  for  shipments  made  without  contracts  limiting  liability  than  the 
rate  charged  for  shipments  made  under  contracts  limiting  liability.  See  Pad- 
dock V.  Railroad  Co.,  1  Mo.  App.  Rep'r.  87.  In  Hance  v.  Railroad  Co..  56  Mo. 
App.  476,  it  is  held  that,  where  the  rate  charged  is  the  usual  rate,  a  stipula- 
tion limiting  liability  is  without  consideration  See,  also,  Kellerman  v.  Rail- 
road Co.  (Mo.  Sup.)  84  S.  W.  41. 

648  Nelson  v.  Railroad  Co.,  48  N.  Y.  408.  See.  also.  Kirby  v  Express  Co.. 
2  Mo.  App.  369;    Hutchinson  v.  Railroad  Co.,  37  Minn   524,  35  N    W.  433 

s*T  Hutch.  Carr.  §  278. 

848  Magnin  v.  Dinsmore,  56  N.  Y.  168;  Edsal!  v.  Railroad  Co..  5<)  N.  Y.  661; 
Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  11;  Levering  v.  Union  Transp.  Co., 
42  Mo.  88;  Rosenfeld  v.  Railroad  Co.,  10.3  Ind.  121.  L'  N.  E.  344:  St.  I>iuis  &  S. 
E.  R.  Co.  V.  Smuck,  49  Ind.  302;  Gronstadt  v.  Wltthoff,  15  Fed.  265';  Marx 
V.  Steamship  Co.,  22  Fed.  680;  Ayres  v.  Railroad  Corp..  14  Blatchf.  9.  Fed. 
Caa.  No.  689. 

849  Kansas  City,  M.  &  B.  R.  Co.  v.  Holland,  68  Miss.  351,  8  South.  516;  Black 
V.  Transportation  Co.,  55  Wis.  319,  13  N.  W.  244;  Little  Rock,  .M.  R.  &  T.  R. 
Co.  V.  Talbot,  39  Ark.  523. 

880  Munn  v.  Baker,  2  Starkie,  255.  And  see  Edsall  t.  Railroad  Co.,  CO  N. 
Y.  661;   Alrey  v.  Merrill,  2  Curt.  8,  Fed.  Cas.  No.  115. 

LAW  BAXLM. — 28 


434  CARRIKRS    OF   GOODS.  [Ch.  7 

guage  in  the  same  connection.  For  example,  a  release  from  lia- 
bility for  loss  arising  from  "leakage  or  decay,  chafing  or  breakage, 
or  from  any  other  cause,"  does  not  exempt  the  carrier  from  lia- 
bility for  loss  by  fire.'"'^  An  exemption  from  liability  for  loss 
through  any  particular  cause  does  not  include  negligent  losses  of 
that  character.^® ^  So,  also,  it  has  been  held  that  specific  exemp- 
tions from  liability  for  loss  by  certain  perils  will  make  the  car- 
rier liable  for  losses  by  perils  against  which  he  is  ordinarily  not 
an  insurer.  This  is  on  the  principle  that  "expressio  unius  est  ex- 
clusio  alterius."  °°^  A  special  contract  limiting  the  carrier's  lia- 
bility does  not  change  his  character  from  that  of  a  common  car- 
rier to  that  of  an  ordinary  bailee.  It  merely  limits  his  liabilities, 
leaving  him,  in  all  other  respects,  a  common  carrier  still,  having 
all  the  rights  and  subject  to  all  the  duties  of  common  carriers.'*'^* 
As  to  the  validity  of  contracts  limiting  liability,  the  law  of  the 
place  where  the  contract  was  made  will  govern, ^^^  unless  the 
contracting  parties  clearly  had  some  other  law  in  view.®^°  But 
whether  the  facts  show  that  a  contract  has  been  made,  or  not, 
must  be  determined  by  the  law  at  the  place  of  trial.  This  is  a 
question  of  evidence.     It  relates  to  the  remedy,  and  not  to  the 

«5i  Menzell  v.  Railroad  Co.,  1  Dillon,  531,  Fed.  Gas.  No.  9,429.  See,  also. 
Hawkins  v.  Railroad  Co.,  17  Mich.  57. 

c52Aslimore  v.  Pennsylvania  Steam  Towing  &  Transp.  Co.,  28  N.  J.  Law, 
180;  Mynard  v.  Railroad  Co.,  71  N.  Y.  ISO.  But  see  Cragin  v.  Railroad  Co., 
51  N.  Y.  61.  See,  also,  ante,  p.  359.  An  exemption  from  liability  for  delay  does 
not  cover  a  negligent  delay.    McKay  v.  Railroad  Co.  (Sup.)  3  N.  Y.  Supp.  708. 

B68  Fish  v.  Chapman,  2  Ga.  349.  In  Gage  v.  Tirrell,  9  Allen,  299,  it  was  held 
that,  under  a  bill  of  lading  providing  for  delivery,  the  "dangers  of  the  sea  only 
excepted,"  the  carrier  was  not  liable  for  loss  by  act  of  public  enemy. 

BG4  Hutch.  Carr.  §§  41,  45;  Railroad  Co.  v.  Lockwood.  17  Wall.  357;  David- 
son V.  Graham,  2  Ohio  St.  131.  But  see  Penn  v.  Railroad  Co.,  49  N. 
Y.  204;    Lake  Shore  &  M.  S.  R.  Co.  v.  Perkins.  25  Mich.  329. 

BBsTalbott  V.  Transportation  Co.,  41  Iowa,  247;  Fonseca  v  Steamship  Co., 
153  Mass.  553,  27  N.  E.  6G5;  Hoadley  v.  Transportation  Co..  115  Mass.  304; 
Western  &  A.  R.  Co.  v.  Exposition  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916;  Mc- 
Daniel  v.  Railway  Co.,  24  Iowa,  412;  Cantu  v  Bennett,  39  Tex.  303;  First 
Nat.  Bank  of  Toledo  v.  Shaw,  61  N.  Y.  283.  Compare  Dyke  v.  Railway  Co., 
45  N.  Y.  113;    Curtis  v.  Railroad  Co.,  74  N.  Y.  116. 

B89  Liverpool  &  G.  W.  Steam  Co.  v.  Insurance  Co.  of  North  America,  129  U. 
S.  397,  9  Sup.  Ct  480;    In  re  Missouri  Steamship  Co.,  42  Ch.  Div  321. 


§§   90-91]  CONTRACTS    LIMITINQ    LIABILITT.  435 

right.  Tlie  lex  loci  contractus  determines  tlie  validity  of  a  con- 
tract. The  lex  fori  controls  the  admission  of  evidence,  and  the 
remedy  upon  the  contract."^" 

When  Contract  Inures  to  Benefit  of  Connecting  Lines. 

As  will  be  seen  hereafter,  a  common  carrier  may,  by  special 
contract,  bind  himself  for  transportation  over  connecting  lines  to 
points  beyond  his  own  line;  and,  if  he  does  so,  he  is  liable  as 
carrier  for  the  whole  route.""^  In  such  a  case  the  stipulations 
in  the  special  contract  between  the  owner  and  the  first  carrier 
inure  to  the  benefit  of  the  connecting  carrier."""*  Tliis  is  upon 
the  theory  that  the  compensation  being  fixed  with  reference  to 
the  liability  assumed,  and  the  first  carrier  being  liable  for  the 
entire  transportation,  such  carrier  has  an  interest  in  making  the 
exception  commensurate  with  the  scope  and  duration  of  the  con- 
tract, and  the  connecting  lines  acting  under  its  employment  are 
entitled  to  the  benefits  of  the  contract. "^^^ 

6BT  Hoadley  v.  Transportation  Co.,  115  Mass.  304.  And  see  l-'aulkner  v. 
Hart,  82  N.  Y.  413. 

558  See  post,  p.  463.  A  carrier  may  limit  his  liability  to  losses  occurring 
on  his  own  line.  Wabash  R.  Co.  v.  Harris,  55  111.  App.  151);  Texas  &  P.  Ky. 
Co.  V.  Hawkins  (Tex.  Civ.  App.)  30  S.  W.  1113;  Hill  v.  Railroad  Co.  (S.  C.)  21 
S.  E.  337;  Minter  v.  Railroad  Co.,  5G  Mo.  App.  282;  Kogers  v.  Railroad  Co. 
(Tex.  Civ.  App.)  28  S.  W.  1024.  No  special  consideration  is  nccessarj'  to  sus- 
tain such  a  stipulation.  Hance  v.  Railroad  Co.,  56  Mo.  App.  476.  When  con- 
necting carriers  are  partners  in  the  transportation  of  freight,  a  stipulation 
in  the  contract  of  shipment,  providing  that  the  company  shall  not  be  liable 
for  injuries  to  property  after  it  has  passed  beyond  its  line,  does  not  relieve 
it  from  liability  for  such  injuries.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilson  (Tex.  Civ. 
App.)  26  S.  W.  131. 

650  Maghee  v.  Railroad  Co.,  45  N.  Y.  514.  Cf.  Erie  R  Co.  v.  Wik-oi,  84 
111.  239;    I.amb  v.  Railroad  Co.,  46  N.  Y.  271. 

660  Maghee  v.  Railroad  Co.,  45  N.  Y.  514;  Railroad  Co.  v.  Androscoggin 
Mills,  22  AVall.  594;  Manhattan  Oil  Co.  v.  Camden,  etc.,  R.  &c.  Co.,  54  N.  Y. 
197;  Whitworth  v.  Railroad  Co.,  87  N.  Y.  413;  Halliday  v.  Railroad  Co..  74 
Mo.  159;  Levy  v.  Express  Co.,  4  S.  C.  234.  Whenever  the  carrier  Is  bound, 
by  contract  or  by  law,  to  carry  to  destination,  all  carriers  who  engage  In  the 
transportation  for  any  portion  of  the  route  are  cnUtled  to  all  the  protection 
which  the  first  carrier  has  secured  by  his  contract  with  the  shipper.  Uutch. 
Carr.  §  273;  Whitworth  v.  Railroad  Co.,  supra;  KiCE  v.  lUiili-oad  Co.,  32  Kau, 
263,  4  Pac.  401. 


436  CARRIERS   OF   GOODS.  [Ch.  7 

But  where  the  contract  with  the  first  carrier  is  only  for  trans- 
portation over  its  own  line,  and  delivery  to  the  connecting  car- 
rier, the  latter  is  not  entitled  to  the  benefit  of  limitations  con- 
tained in  the  contract  between  the  shipper  and  the  first  carrier.^®^ 
In  this  class  of  cases  the  contract  is  not  intended  as  a  through 
contract,  and  therefore,  as  no  rate  of  freight  is  agreed  upon  for 
any  part  of  the  route  be3'ond  the  terminus  of  the  first  carrier's 
route,  there  is  no  consideration  for  an  agreement  by  the  shipper  to 
relieve  the  connecting  carrier  of  his  common-law  liabilities/®^ 
No  such  agreement  is  in  fact  made  by  the  shipper,  and  the  first 
carrier,  acting  as  a  forwarding  agent,  has  no  authority  to  do  so 
for  him.  It  is  said,  however,  that  the  first  of  the  connecting 
carriers,  though  not  bound  for  the  entire  transportation,  may, 
on  delivery  to  the  connecting  carrier,  enter  into  a  contract  with 
the  latter,  binding  upon  the  ow^ner,  for  a  similar  limitation  of 
liability  to  that  under  which  the  first  carrier  received  the  goods, 
but  not  for  any  different  limitations.''®* 

The  question  as  to  what  contracts  will  be  construed  to  be  con- 
tracts for  through  transportation,  and  what  contracts  to  transport 
merely  to  the  terminus  of  the  first  carrier's  line,  will  be  considered 
hereafter,  when  the  subject  of  delivery  to  connecting  carriers  is 
specifically  treated.'^®* 

Bilk  of  Lading  as  Contracts  and  Receipts. 

"The  bill  of  lading  or  shipping  receipt  may  serve  a  double  pur- 
pose,— that  of  a  receipt  for  the  goods,  and  that  of  a  contract  for 

581  Babcock  v.  Railroad  Co.,  49  N.  Y.  491;  Merchants'  Dispatch  Transp. 
Co.  V.  Bolles,  80  111.  473;  Bancroft  v.  Transportation  Co.,  47  Iowa,  262;  Adams 
Exp.  Co.  V.  Harris,  120  Ind.  73,  21  N.  E.  .340;  Martin  v.  Express  Co.,  19  Wis. 
3.3fi;  Camden  &  A.  R.  Co.  v.  Forsyth,  61  Pa.  St.  81;  Aetna  lus.  Co.  v.  Wheeler, 
49  N.  Y.  616;  Western  &  A.  R.  Co.  v.  Cotton  Mills,  81  Ga.  523,  7  S.  E.  916. 
See,  also,  Taylor  v.  Railroad  Co.,  39  Ark.  148. 

682  Babcock  v.  Railroad  Co.,  49  N.  Y.  491.  "The  connecting  carrier,  in  such 
case,  is  not  only  a  stranger  to  the  contract,  but  to  its  consideration.  There 
can  be  no  presumption  that  there  has  been,  on  his  part,  any  abatement  of 
liis  charges  as  a  consideration  for  exemption  from  liability  on  the  part  of 
the  owner  of  the  goods;  and,  there  being  no  express  contract  with  him,  the 
law  will  not  imply  one  for  his  benefit.  "    Hutch.  Carr.  §  272. 

663  Lamb  v.  Transportation  Co.,  46  N.  Y.  271, 

B64  See  post,  p.  463. 


§§    92-93]  NOTICES    LIMITING    LIABILITY.  437 

their  transportation.  So  far  as  it  provides  as  to  terms  and  man- 
ner of  shipment,  and  liability  of  the  carrier,  it  constitutes  a  con- 
tract, and  cannot  be  varied  by  parol  evidence  of  a  prior  or  contem- 
poraneous oral  agreement.""  But,  so  far  as  it  constitutes  a  re- 
ceipt for  the  goods,  it  can  be  varied  by  parol  evidence  as  to  quan- 
tity or  condition,  as  between  the  immediate  parties,  but  not  as 
against  an  assignee  thereof  for  value  without  notice,  unless  it  be 
shown  to  have  been  issued  without  any  authority  whatever."* 
The  bill  or  receipt  will  be  considered  as  issued  wholly  williout  au- 
thority, and  therefore  as  not  estopping  the  carrier,  if  it  is  issued 
by  the  agent  without  the  receipt  of  any  goods  thereunder."  ••' 

92.  NOTICES    LIMITING   LIABILITY— Notices   affectiriff 

liability  may  be  divided  into  two  classes: 

(a)  Notices  effectual  only  -when  assented  to  by  the  ship- 

per (p.  437). 

(b)  Notices  effectual  'mthout  assent  of  the  shipper,  when 

brought  home  to  him  (p.  445). 

93.  Notices  limiting-  liability  are   of  no   effect  unless   as- 

sented to  by  the  shipper.  Assent  cannot  be  in- 
ferred from  mere  delivery  after  knowledge  of  the 
notice. 

It  has  been  seen  that  common  carriers  have  power  to  limit  tluir 
liability,  to  a  certain  extent,  by  contract.     In  England  it  is  held 

665  The  Delaware,  14  Wall.  579;  Garden  Grove  Bauk  v.  Huuieston  &  S. 
Ry.  Co.,  G7  Iowa,  52G,  25  N.  W.  761;  Louisville,  E.  &  St.  L.  li.  Co.  v.  Wilson. 
119  Ind.  352,  21  N.  E.  341. 

666  O'Brien  v.  Gilchrist,  34  Me.  554;  Kelyea  v.  Mill  Co..  42  Couu.  079;  Sioux 
City  &  P.  R.  Co.  V.  First  Nat.  Bank,  10  Neb.  55U,  7  N.  W.  311;  St.  Louis,  1. 
M.  &  S.  R.  Co.  V.  Knight,  122  U.  S.  79,  7  Sup.  Ct.  1132. 

B67  McClain,  Can-,  p.  11;  The  Freeman  v.  Buckingham,  IS  How.  1:S2;  I'ol- 
lard  v.  Vinton.  105  U.  S.  7,  5  Myers,  Fed.  Dec.  158;  Friedlander  v.  Kallroad 
Co.,  130  U.  S.  416,  9  Sup.  Ct.  570;  Bank  v.  Wisconsin  Cent  Uy.  Co.,  44  Minn. 
224,  46  N.  W.  342,  560.  Contra,  Armour  v.  Railroad  Co.,  65  N.  Y.  Ill;  Brooke 
V.  Railroad  Co.,  108  Pa.  St.  529,  1  AU.  206;  Bank  of  Batavla  v.  New  York. 
L.  E.  &  W.  R.  Co.,  106  N.  Y.  195,  12  N.  E.  433;  Grant  v.  Norway,  10  C.  B.  (165. 
As  to  Mississippi  statute,  making  bills  of  lading  conclusive  evidence  of  re- 
ceipt of  goods,  see  The  Guiding  Star,  10  C.  C.  A.  454,  62  Fed.  407. 


438  CAURIERS   OF   GOODS.  [Ch.  7 

that  they  may  do  so,  even  by  a  general  notice  to  that  effect,  if 
knowledge  of  such  notice  is  brought  home  to  the  shipper."^®*  But 
in  this  country  the  rule  is  well  established  that  notices  limiting  lia- 
bility are  of  no  avail  unless  assented  to  by  the  shipper,"'®  in  which 
case  a  contract  is  established, '*^°  and  the  principles  already  dis- 
cussed are  applicable.  The  American  rule  finds  its  reason  in  the 
nature  of  a  common  carrier's  duty  to  the  public.  It  is  a  com- 
mon carrier's  duty  to  carry  for  all  who  offer,  and  it  cannot  di- 
vest itself  of  this  duty  by  any  ex  parte  act  of  its  own,  short  of 
ceasing  to  be  a  common  carrier.  Subject  to  reasonable  regula- 
tions, every  man  has  a  right  to  insist  that  his  property,  if  of  such 
description  as  the  carrier  assumes  to  convey,  shall  be  transported 
subject  to  the  carrier's  common-law  liability.  A  common  carrier 
has  no  right  to  refuse  goods  offered  for  carriage  at  the  proper  time 
and  place,  on  tender  of  the  usual  and  reasonable  compensation, 
unless  the  owner  will  consent  to  his  receiving  them  under  a  re- 
duced liability,  and  the  owner  can  insist  on  his  receiving  the  goods 
under  all  the  risks  and  responsibilities  the  law  annexes  to  his 
employment.^^^  The  fact  that  a  restrictive  notice  is  shown  to 
have  been  actually  received  or  seen  by  the  owner  of  the  goods  will 
not  raise  the  presumption  that  he  assents  to  its  terms,  since  it  is 
as  reasonable  to  infer  that  he  intends  to  insist  on  his  rights  as 
that  he  assents  to  their  qualification,  and  the  burden  of  proof  is 

5«8  Maying  v.  Todd,  1  Starkie,  72;  Nicholson  v.  Willan,  5  East,  507;  Leeson 
V.  Holt.  1  Starkie,  180;  London  &  N.  W.  Ry.  Co.  v.  Dunham,  18  C.  B.  82(5; 
Hutch.  Carr.  §§  228,  229. 

569  Western  Transp.  Co.  v.  Newhall,  24  111.  466;  Dorr  v.  Navigation  Co.,  11 
N.  Y.  485;  McMillan  v.  Railroad  Co.,  16  Mich.  79;  Blumenthal  v.  Brainerd, 
38  Vt.  402;   Little  v.  Railroad  Co.,  66  Me.  239. 

070  Wheeler,  Carr.  231;  Gott  v.  Dinsmore,  111  Mass.  45.  52;  Fibel  v.  Liv- 
ingston, 64  Barb.  179;  Southern  Exp.  Co.  v.  Crook.  44  Ala.  468;  Brown  v. 
Express  Co.,  15  W.  Va.  812;  Farmers'  &  Mechanics'  Bank  v.  Chm  pla!:i  Trai-sp. 
Co.,  23  Vt.  186;  Blumenthal  v.  Brainerd,  38  Vt.  402.  But  see,  contra,  Cam- 
den &  A.  R.  Co.  V.  Baldauf,  16  Pa.  St.  67. 

B71  See  Hollister  v.  Xowlen,  19  Wend.  234;  Cole  v.  Goodwin,  19  Wend.  251; 
Jones  V.  Voorhees,  10  Ohio,  145;  Bennett  v.  Button,  10  N.  H.  481,  487;  New 
Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  882;  Moses  v.  RaUroad, 
24  N.  H.  71;  Kimball  v.  Railroad  Co.,  26  Vt  256;  Dorr  v.  Navigation  Co., 
4  Sandf.  136,  11  N.  Y.  485;  Michigan  Cent.  R.  Co.  v.  Hale,  6  Mich.  243;  Slo- 
cum  V.  Fairchild,  7  Hill,  292. 


§§    92-93]  NOTICES    LIMITING    LIABILITY.  439 

upon  the  carrier  to  establish  the  contract  qualifying  his  lihbilitj, 
if  he  claims  that  one  exists.*^'     "Conceding  that  there  may  be  a 
special  contract  for  a  restricted  liability,"  says  Bronson,  J.,  in  a 
leading  American   case,"''^   "such   a  contract   cannot,   I   think,   be 
inferred  from  a  general  notice  brought  home  to  the  employer.     The 
argument  is  that  where  a  party  delivers  goods  to  be  carried,  after 
seeing  a  notice  that  the  carrier  inl<»nds  to  limit  his  responsibility, 
his  assent  to  the  terms  of  the  notice  may  be  implied.     But  this 
argument  entirely  overlooks  a  very  important  consideration.     Not- 
withstanding the  notice,  the  owner  has  a  right  to  insist  that  the 
carrier  shall  receive  the  goods  subject  to  all  the  responsibilities 
incident  to  his  employment.     If  the  delivery  of  the  goods  under 
such   circumstances  authorizes  an   implication   of   any   kind,   the 
presumption  is  as  strong,  to  say  the  least,  that  the  owner  intended 
to  insist  on  his  legal  rights,  as  it  is  that  he  was  willing  to  yield 
to  the  wishes  of  the  carrier.     If  a  coat  be  ordered  from  a  mechanic 
after  he  has  given  the  customer  notice  that  he  will  not  furnish  the 
article  at  a  less  price  than  $100,  the  assent  of  the  customer  to  pay 
that  sum,  though  it  be  double  the  value,  may,  perhaps,  be  implied ; 
but  if  the  mechanic  had  been  under  a  legal  obligation,  not  only  to 
furnish  the  coat,  but  to  do  so  at  a  reasonable  price,  no  such  im- 
plication could  arise.     Now,  the  carrier  is  under  a  legal  obligation 
to  receive  and  convey  the  goods  safely,  or  answer  for  the  loss. 
He  has  no  right  to  prescribe  any  other  terms;    and  a  notice  can. 
at  the  most,  only  amount  to  a  proposal  for  a  si»ecial   contract, 
which  requires  the  assent  of  the  other  party.     Putting  the  mat- 
ter in  the  most  favorable  light  for  the  carrier,  the  mere  delivery 
of  goods  after  seeing  a  notice  cannot  warrant  a  stronger  presumi»- 
tion  that  the  owner  intended  to  assent  to  a  restricted   liability 
on  the  part  of  the  carrier,  than  it  does  that  he  intended  to  in- 
sist  on   the  liabilities   imposed  by   law;    and   a   special   contract 
cannot  be  implied  where  there  is  such  an  ecpiipoise  of  probabili- 
ties." 

67  2  McMillan  v.  Railroad  Co.,  16  Mich.  79.  Ill  (per  Cooley.  J.);    New  Jt-raey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  G  How.  344.  883  (per  Nelson,  J.). 
678  HoUister  v.  Nowlen,  19  Wend.  234,  246. 


440  CARRIERS    OF    GOODS.  [Gil.  7 

What  Constitutes  Assent — Modes  of  Giving  Notice. 

A  notice  therefore  amounts  to  no  more  than  a  proposal  for  a  con- 
tract, "^^  and,  inasmuch  as  it  must  be  assented  to  by  the  shipper  be- 
fore it  becomes  binding  as  a  contract,  it  becomes  important  to  dete,r- 
mine  what  facts  will  amount  to  assent. 

In  the  first  place,  it  is  obvious  that  the  terms  and  conditions  of  a 
notice  cannot  be  assented  to  unless  they  are  known  to  the  shipper. 
Carriers  have  adopted  various  means  to  bring  the  notice  home  to  him, 
such  as  advertisements  in  newspapers,  posting  notices,  or  printing 
notices  upon  bills  of  lading,  receipts,  tickets,  and  the  like. 

The  custom  of  publishing  notices  in  newspapers  has  been  almost 
abandoned.  There  is  no  presumption  that  even  a  person  who  takes 
a  paper  reads  all  its  contents;  hence,  it  is  difiScult,  if  not  impossible, 
to  charge  a  person  with  notice  given  in  that  way.^^"*  The  same  objec- 
tion applies  to  notices  by  means  of  signs,  posters,  or  handbills,  and 
the  like.     A  person  may  see  a  sign  without  reading  if^* 

Same — Bills  of  Lading. 

The  custom  of  printing  notices  limiting  liability  upon  bills  of  lad- 
ing, receipts,  tickets,  baggage  checks,  and  the  like,  originated  in  a 
suggestion  of  the  English  judges  that  the  giving  of  a  written  memo- 
randum of  the  terms  upon  which  the  goods  were  received  would  "put 
an  end  to  the  litigation  which  the  notices  of  carriers  now  give  occa- 
sion to."  "^^ 

As  to  bills  of  lading,  and  other  commercial  instruments  of  like  char- 
acter,  it  has  been  held  that  persons  receiving  them  are  presumed  to 
know,  from  their  uniform  character  and  the  nature  of  the  business, 
that  they  contain  the  terms  upon  which  the  property  is  to  be  car- 

074  Lawson,  Carr.  §  101;    Hollister  v.  Nowlen,  19  Wend.  234. 

5T6  Michigan  Cent.  R.  Co.  v.  Hale,  6  Micli.  243;  Barney  v.  Prentiss,  4  Har. 
&  J.  (Md.)  317;  Judson  v.  Railroad  Corp.,  6  Allen,  4SG-  Rowley  v.  Home,  3 
Bing.  2;    Munn  v.  Baker,   2  Starkle,  255;    Baldwin  v.  Collins,  9  Rob.  (La.)  4GS. 

57  6  Clayton  v.  Hunt,  3  Camp.  27;  Butler  v.  Heane,  2  Camp.  415;  Brooke  v. 
Pickwick,  4  Bing.  218;  Kerr  v.  Willan,  G  Maule  &.  S.  150,  2  Starkie.  53;  Hol- 
lister V.  Nowlen,  19  Wend.  234;  Gleason  v.  Transportation  Co.,  32  Wis.  85; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Greenwood,  79  Pa.  St.  373;  Cantling  v.  Rail- 
road Co.,  54  Mo.  385. 

BIT  Riley  V.  Home,  5  Bing.  217  (per  Best,  C.  J.).  See,  also,  Rowley  v.  Home, 
3  Bing.  2;  Kerr  v.  Willan,  6  Maule  &  S.  150,  2  Starkie,  53;  Shelton  v.  Trans- 
portation Co.,  59  N.  y.  258;    Oppeubeimer  v.  Express  Co.,  69  IlL  02. 


§§    92-03]  NOTICES    LIMITING    UAniUTY.  441 

ried."'  Delivery  to  a  shipper  of  a  sliipping  receipt  or  bill  of  lading 
containing  stipulations  specifying  tlie  terms  of  the  sliipment  will  con- 
stitnte  a  contract,  if  accepted,  although  express  assent  to^uch  terms 
is  not  shown. "^^  But  to  have  this  effect  the  receipt  or  bill  must  be 
delivered  before  the  transportation  is  entered  upon  by  the  carrier, 
and  while  it  is  still  in  the  power  of  the  shipper  to  reiall  the  kuo<]s."" 
But  if  the  shipp^  knew  the  contents  of  the  usual  bill  of  lading  issuL-d 
by  the  cai'rier,  and  also  a  custom  of  the  earner  to  deliver  such  bills 
after  shipment,  he  will  be  bound  thereby."***  It  must  also  be  deliv- 
ered to  some  one  authorized  to  act  for  the  consignor  in  the  shipment 
of  the  goods.  But  a  pe;rson  authorized  to  ship  has  such  authority 
as  to  bind  the  consignor  by  acceptance  of  the  receipt  or  bill.***  The 
acceptance  of  such  bill  or  receipt  by  the  consignor  binds  the  con 
signee.^*'  "Bills  of  lading  are  signed  by  the  cairier  only,  and. 
where  a  contract  is  to  be  signed  only  by  one  party,  the  evidence  of 
assent  to  its  terms  by  the  other  pai'ty  consists  usually  in  his  receiv 
ing  and  acting  upon  it.  This  is  the  case  with  deeds  poll,  and  with 
various  classes  of  familiar  contracts,  and  the  evidence  of  assent  dc 
rived  from  the  acceptance  of  the  contract  without  objwtion  is  com- 
monly conclu&iye  I  do  not  perceive  that  bills  of  lading  stand  upon 
any  different  footing.  If  the  carrier  should  cause  limitations  upon 
his  liability  to  be  inserted  in  the  contract  in  such  a  manner  as  not  to 
attract  the  consigiior's  attention,  the  question  of  assent  might  fairly 

»T8  Blossom  V.  Dodd,  43  N.  Y.  264,  2G0. 

678  Grace  v.  Adams,  100  Mass.  505;  Mulligan  v.  IL-iilway  CJo.,  3G  Iowa.  181; 
Kirkland  v.  Dinsmore,  62  N.  Y.  171;  Anchor  Line  v.  Dater,  68  111.  361).  Even 
though  he  neglects  to  read  its  terms.  Davis  v.  Railroad  Co..  66  Vt.  2U0,  29 
Atl.  313.  Acceptance  of  a  bill  of  lading  is  not  conclusive  evidence  that  the 
shipper  assented  to  a  stipulation  limiting  the  carrier's  liability  to  his  own 
line.  Wabash  R.  Co.  v.  Harris,  55  111.  App.  159.  See.  also.  S<-hulzt^-Berge  v. 
The  Guildhall,  58  Fed.  796. 

S80  Wilde  V.  Transportation  Co.,  47  Iowa,  247;  Merchants'  Dispatch  Traosp. 
Co.  V.  Furthmann,  149  111.  66,  36  N.  E.  624,  affirming  47  111.  App.  561;  Mich- 
igan Cent  R.  Co.  v.  Boyd,  91  111.  268.  Where  a  shipper  load.s  his  cattle  under 
a  parol  contract,  such  contract  governs  a  written  contract  given  him  ju.st  as 
tlie  train  was  starting.  Missouri,  K.  &  T.  Ry.  Co.  v.  Carter  (Tex.  Civ.  .\pp.) 
29  S.  W.  565. 

5»i  Shelton  v.  Transportation  Co.,  59  N.  Y.  258. 

5&2  Nelson  v.  Railroad  Co.,  48  N.  Y  498:  Squire  v.  Railroad  Co..  98  Ma.s.s.  239. 

5«3  McClain,  Carr.  p.  11;   Robinson  v.  Transportation  Co.,  45  Iowa,  47a 


442  CARRIERS    OF    GOODS.  [Ch.  7 

be  considered  an  open  one;  ^^*  and,  if  delivery  of  the  bill  of  lading 
was  made  to  the  consignor  under  such  circumstances  as  to  lead  him 
to  suppose  it  to  be  something  else, — as,  for  instance,  a  mere  receipt  for 
money, — it  could  not  be  held  binding  upon  him  as  a  contract,  inasmuch 
as  it  had  never  been  delivered  to  and  accepted  by  him  as  such.^®' 
But,  except  in  these  and  similar  cases,  it  cannot  become  a  material 
question  whether  the  consignor  read  the  bill  of  lading  or  not."  ^** 

Same — Express  Receipts. 

Express  receipts  stand  upon  the  same  footing  as  bills  of  lading. 
When  accepted  without  objection,  they  constitute  the  contract  be- 
tween the  parties.'**^  O.riginally  it  was  held  that  the  mere  delivery 
of  such  receipts  did  not  amount  to  a  contract,  unless  the  terms  were 
read  and  assented  to  by  the  shipper.^^*     But  the  practice  of  embody- 

584  Brown  v.  Railroad  Co.,  11  Gush.  97. 

585  King  V.  Woodbridge,  34  Vt.  565. 

586  McMillan  v.  Railroad  Co.,  16  Mich.  79.  But  where  the  notice  Is  printed 
on  the  back  of  a  paper,  and  not  in  and  as  a  part  of  the  proposed  contract,  as- 
sent is  not  implied  by  acceptance.  Michigan  Cent.  R.  Co.  v.  Mineral  Springs 
Manuf'g  Co.,  16  Wall.  318;  Michigan  Cent.  R.  Co.  y.  Hale,  6  Mich.  243;  The 
Isabella,  8  Ben.  139,  Fed.  Cas.  No.  7,099;  Newell  v.  Smith,  49  Vt.  255;  Ayres 
V.  Railroad  Corp.,  14  Blatchf.  9,  Fed.  Cas.  No.  689.  In  Western  Ti-ansp.  Co.  v. 
Newhall,  24  111.  4G6.  there  was  said  to  be  no  difference  between  notices  by 
advertisement  or  placard  and  notices  printed  on  the  back  of  a  receipt. 

587  Huntington  v.  Dinsmore,  4  Hun,  66,  6  Thomp.  &  C.  195;  Snider  v.  Ex- 
press Co.,  63  Mo.  370;  Soumet  v.  Express  Co.,  00  Barb.  284;  Brehme  v.  Ex- 
press Co.,  25  Md.  328;  Christenson  v.  Express  Co.,  15  Minn.  270  (Gil.  208); 
Kirkland  v.  Dinsmore,  62  N.  Y.  171;  Belger  v.  Dinsmore,  51  N.  Y.  166; 
Magnin  v.  Dinsmore,  56  N.  Y.  168;  Westcott  v.  Fargo,  61  N.  Y.  542;  Adams 
Exp.  Co.  v.  Haynes,  42  111.  89;  Merchants'  Despatch  Transp.  Co.  v.  Leysor,  89  111. 
43;  Grace  v.  Adams,  100  Mass.  505;  Boorman  v.  Express  Co.,  21  Wis.  152.  But 
see  Adams  Exp.  Co.  v.  Stettaners,  61  111.  184;  Adams  Exp.  Co.  v.  Sier,  55  111. 
HO.  In  Illinois  carriers  are  forbidden  to  limit  their  liability  by  stipulations 
in  the  receipt  given  for  the  property.  But  see  Illinois  Cent.  R.  Co..  v.  Jonte,  13 
111.  App.  424.  In  Dakota  and  Michigan  the  shipper's  assent  is  by  statute  re- 
quired to  be  shown  by  his  signature.  Hartwell  v.  Express  Co.,  5  Dak.  463, 
41  N.  W.  732;  Feige  v.  Railroad  Co.,  62  Mich.  1,  28  N.  W.  685.  And  see 
Southern  Exp.  Co.  v.  Newby,  36  Ga.  635. 

688  Kirkland  v.  Dinsmore,  2  Hun,  46.  4  Thomp.  &  C.  304,  reversed  62  N. 
Y.  171;  Belger  v.  Dinsmore,  51  Barb.  69,  reversed  51  N.  Y.  166;  Adams  Exp. 
Co.  V.  Nock,  2  Duv.  (Ky.)  562;   Kember  v.  Express  Co.,  22  La,  Ann.  15& 


§§    92-93]  NOTICES    LIMITING    LIABILITY.  413 

lug  the  terms  of  shipment  in  such  receipts  has  become  so  general 
that  they  are  no  longer  distinguishable  from  bills  of  lading. 

A  distinction,  however,  must  be  observed  between  the  great  express 
companies  of  the  country,  and  local  express  companies  receiving  bag 
gage  from  travelers  for  transportation  to  tlieir  innuediate  destination. 
In  the  latter  case  there  is  nothing  in  tlie  nature  of  the  transaction  or 
the  custom  of  the  trade  which  should  naturally  lead  the  shipper  to 
suppose  that  he  was  receiving  and  accepting  the  written  evidence 
of  a  contract,  and  therefore  he  is  not  bound  by  the  terms  of  the  receipt 
received,  in  the  absence  of  other  evidence  that  he  assented  thereto.'^"' 

Same — Tickets,  Baggage  Checks,  Receipts,  Etc. 

Assent  to  conditions  and  limitations  printed  on  railroad  and 
steamboat  ticketj,  baggage  checks,  receipts,  and  the  like,  is  not  pre- 
sumed from  a  mere  acceptance  without  objection.'""'  The  reason  for 
this  is  that  the  nature  of  such  instruments  is  not  such  as  to  neces- 
sarily convey  to  the  mind  of  the  shipi>er  the  idea  of  a  contract,  in 
such  a  manner  as  to  raise  the  presumption  that  he  knew  it  was  a  con- 
tract expressive  of  the  terms  upon  which  the  property  was  carried, 
or  limiting  the  liability  of  the  carrier.  For  example,  a  railroad 
ticket  does  not  generally  contain  any  contract,  and  is  not  intended  to 
do  so.  "It  is  a  mere  token  or  voucher,  adopted  for  convenience,  to 
show  that  the  passenger  has  paid  his  fare  from  one  i)hice  to  an 
other."  ^°^  Therefore  a  passenger  is  not  bound  by  a  notice,  printed  on 
the  face  of  his  ticket,  limiting  the  weight  and  value  of  his  baggage, 
unless  his  attention  is  called  to  the  notice,  or  he  is  aware  of  it  at  the 
time  the  ticket  is  purchased. ^"^     Nor  even  then  unless  he  assents  to 

580  Wheeler,  Carr.  p.  225;    Blossom  v.  Dodd,  43  N.  Y.  2(>L 

B90  Prentice  v.  Decker,  49  Barb.  21;  Limburger  v.  Westcott,  4U  Barb.  2Xi; 
Sunderland  v.  Westcott,  2  Sweeney  (N.  Y.)  2U0;  Isaacson  v.  lUiilrojul  Co..  \H 
N.  Y.  278;   and  eases  cited  infra. 

581  Rawson  V.  llailroad  Co.,  48  N.  Y.  212,  217.  Cf.  BulUmore  &  U.  IL  Co. 
V.  Campbell,  36  Ohio  St.  G47. 

682  Rawson  V.  llailroad  Co.,  48  N.  Y.  212;  MauriU  v.  Railroad  Co..  Zi 
Fed.  7G5.  But  one  who  accepts  and  travels  on  a  "contract  Uckot"  Issued 
by  a  steamship  company  for  the  voyage  from  England  to  America,  which 
ticket  contained  two  quarto  papers  of  printed  matter,  describing  the  rights 
and  liabilities  of  the  parties,  is  bound  by  the  stipulations  therein,  though  he 
has  not  read  or  sigue<L  Fonseca  v.  iiteamship  Co.,  153  Mass.  oCCi,  27  N.  li. 
665. 


444  CARRIERS    OF    GOODS.  [Cll.  7 

it,'^'  though,  perhaps,  such  assent  could  be  implied  from  acceptance 
without  objection. ''**  So  tokens  given  in  exchange  for  baggage 
checks  are  not  of  such  a  nature  as  to  put  persons  on  their  guard  as 
to  memoranda  printed  upon  them,  and  persons  receiving  them  are 
not  presumed  to  know  their  contents,  or  to  assent  to  them.^®° 

In  Madan  v.  Sherard,^^®  where  plaintiff  was  held  not  bound  by 
a  condition  limiting  liability  contained  in  a  printed  receipt  handed 
him  by  the  agent  of  a  baggage  express  company  in  exchange  for 
plaintiff's  baggage  checks,  Andrews,  J.,  said:  ''When  a  contract 
is  required  to  be  in  writing,  and  a  party  receives  a  paper  as  a 
contract,  or  when  he  knows,  or  has  reason  to  suppose,  that  a 
paper  delivered  to  him  contains  the  terms  of  a  special  contract, 
he  is  bound  to  acquaint  himself  with  its  contents;  and,  if  he 
accepts  and  retains  it,  he  will  be  bound  by  it,  although  he  did  not 
read  it.  But  this  rule  cannot,  for  the  reasons  stated,  be  applied 
to  this  case;  and  the  court  properly  refused  to  charge,  as  mat- 
ter of  law,  that  the  delivery  of  the  receipt  created  a  contract  for 
the  carriage  of  the  trunk,  under  its  terms.  The  question  whether, 
in  a  particular  case,  a  party  receiving  such  a  receipt  accepted  it 
with  notice  of  its  contents,  is  one  of  evidence,  to  be  determined 
by  the  jury.  The  fact  of  notice  may  be  proved  by  direct  or  circum- 
stantial evidence."  Metal  baggage  checks  fall  within  the  same 
principle.  "We  may  well  conclude  that  a  passenger  receiving  a 
metal  check  for  his  baggage,  marked  with  its  destination  and  the 
number,  would  be  'nonsupposing^  °^^  of  the  release  of  the  carrier's 
liability  stamped  upon  the  other  side."  ^^* 

698  Baltimore  &  O.  R.  Co.  v.  Campbell,  36  Ohio  St  647. 

69  4  Rawson  V.  Railroad  Co.,  supra, 

58  5  Blossom  V.  Dodd,  43  N.  Y.  264. 

«i»«  73  N.  Y.  329. 

68 T  Referring  to  a  statement  of  Lord  Ellenborough  In  Kerr  v.  Willan,  2 
Starkie,  53,  54,  where  plaintiff's  agent  had  testified  that  he  had  seen  a  board 
on  which  was  painted  a  notice  limiting  liability,  but  "did  not  suppose"  there 
was  anything  upon  it,  his  lordship  said:  "You  cannot  make  this  notice  to 
this  nonsupposing  person." 

688  Indianapolis  &  C.  R.  Co.  v.  Cox,  29  Ind.  3G0;  2  Greenl.  Ev.  §  215.  "A 
distinction  is  to  be  drawn  between  such  notices  as  can  be  strictly  said  to 
limit  his  liability,  by  relieving  him  from  the  strict  common-law  liability  for 
losses  against  which  carriers  are  understood  to  be  insurers,  and  notices  which 


§    94]  NOTICES   LIMITING    LIABILITY.  445 

94.  Notices  of  reasonable  regulations,  and  notices  whose 
object  is  to  obtain  from  the  shipper  information 
•which  the  carrier  has  a  right  to  require,  are  bind- 
ing, -when  brought  home  to  the  shipper,  even  -with- 
out his  assent. 

"It  is  now  well  settled  that  a  common  carrier  may  qualifj  his 
liability  by  a  general  notice  to  all  who  may  employ  him  of  any 
reasonable  requirement  to  be  observed  on  their  part  in  repjard  to 
the  manner  of  delivery  and  entry  of  parcels,  and  the  information 
to  be  given  to  him  of  their  contents,  the  rates  of  freij^ht,  and  the 
like;  as,  for  example,  that  he  will  not  be  responsible  for  goods 
above  the  value  of  a  certain  sum  unless  they  are  entered  as  such, 
and  paid  for  accordingly."  These  are  but  the  reasonable  regula 
tions  which  every  man  should  be  allowed  to  establish  for  his  busi- 
ness, tc  insure  regularity  and  promptness,  and  to  properly  inforui 
him  of  the  responsibility  he  assumes.^®^  Assent  of  the  shipper 
to  the  terms  of  this  class  of  notices  is  unnecessary.  He  is  bound 
by  them  without  assent.  This  doctrine  rests  uj)on  the  right  of 
the  carrier  to  graduate  his  charges  according  to  the  value  of  the 
goods  and  the  risk  involved,®""  and  upon  the  fraud  iuvolvtd  in 
withholding  from  him  information  necessary  to  determine  the 
amount  of  compensation  reasonably  due,  and  the  degree  of  care 
?jid  diligence  to  be  exercised  in  the  carriage.®"^     "This  would  not 

warn  the  public  that  his  business  is  confined  to  the  carriage  of  only  a  par- 
ticular class  of  goods,  or  within  the  limits  of  his  own  route,  or  to  those  not 
above  a  specified  value,  without  a  compliance  on  the  part  of  those  who  em- 
ploy him  with  certain  conditions.  Such  notices  as  these  last  are  uot  to  be 
considered  so  much  in  the  light  of  notices  to  restrict  his  liability  as  In  the 
nature  of  means  to  prevent  fraud  and  imposition  upon  him;  and.  when  they 
are  reasonable,  and  fairly  resorted  to,  no  reason  Is  to  be  found,  in  law. 
morals,  or  in  public  policy,  why  they  should  not  be  allowed  to  protect  him 
against  imposition."     Hutch.  Carr.  (2d  Ed.)  §  244. 

B89  McMillan  v.  Railroad  Co.,  l(j  Mich.  79.  110. 

•00  Gibbon  v.  Paynton,  4  Burrows,  2298  (per  Lord  Mansfield,  and  Aston.  J.); 
Tyly  V.  Morrice,  Garth.  48.j  (per  Holt.  C.  .7.);  Southern  Exp.  Co.  v.  Newby.  ;{•; 
Ga.  635;    Batson  v.  Donovan,  4  Barn.  &  Aid.  21. 

'0  1  Orange  County  Bank  v.  Brown.  9  Wend.  S3.  Uo.     See.  also.  Fish  v.  Chap- 
man, 2  Ga.  349;  Cole  v.  Goodwin,  19  Wend.  2.')1 ;  .Tud.-^on  v.  Rnilrond  Corp..  6 


446  CARRIERS    OF    GOODS.  [Ch.   7 

seem  to  be  any  infringement  upon  the  principle  of  the  ancient  rule. 
He  must  have  a  right  to  know  what  it  is  that  he  undertakes  to 
carry,  and  the  amount  and  extent  of  his  risk.  We  can  see  noth- 
ing that  ought  to  prevent  him  from  requiring  notice  of  the  value  of 
the  commodity  delivered  to  him,  when,  from  its  nature,  or  the 
shape  and  condition  in  which  he  receives  it,  he  may  need  the  infor- 
mation; nor  why  he  should  not  insist  on  being  paid  in  propor- 
tion to  the  value  of  the  goods,  and  the  consequent  amount  of  his 
risk."  ®o*  It  has  been  seen  that  if  the  shipper  does  nothing  to 
mislead  the  carrier,  and  the  latter  makes  no  inquiries,  the  shipper 
is  not  bound  to  state  the  character  or  value  of  the  goods.®"^  But, 
if  the  carrier  inquires,  the  shipper  must  answer  truly.  The  ef- 
fect of  notices  of  this  class  is  to  do  away  with  the  necessity  for  a 
special  inquiry  in  each  case.*"*  *1f  he  has  given  general  notice," 
says  Nelson,  J.,  in  Orange  County  Bank  v.  Brown,®°*  "that  he 
will  not  be  liable,  over  a  certain  amount,  unless  the  value  is  made 
known  to  him  at  the  time  of  delivery,  and  a  premium  for  insurance 
paid,  such  notice,  if  brought  home  to  the  knowledge  of  the  owner. 
is  as  effectual  in  qualifying  the  acceptance  of  the  goods  as  a  spe- 
cial agreement;  and  the  owner,  at  his  peril,  must  disclose  the 
value  and  pay  the  premium.  The  carrier,  in  such  case,  is  not 
bound  to  make  the  inquiry ;  and  if  the  owner  omits  to  make  known 
the  value,  and  does  not,  therefore,  pay  the  premium  at  the  time 
of  delivery,  it  is  considered  as  dealing  unfairly  with  the  carrier, 
and  he  is  liable  only  to  the  amount  mentioned  in  his  notice,  or 
not  at  all,  according  to  the  terms  of  his  notice." 

Notices  of  reasonable  regulations,  and  the  like,  which  are  valid 
without  assent,  and  notices  limiting  liability,  which  are  not  valid 

Allen,  48(5 ;  Slagnin  v.  Dinsmore,  02  N.  Y.  35 ;  Hopkins  v.  Westcott,  6  Blatchf. 
64,  Fed.  Cas.  No.  6,G02 ;  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  344 ;  Farmers'  &  Mechanics'  Bank  v.  Champlain  Transp.  C!o.,  23  Vt  186. 
Where  the  effect  of  failure  to  Inform  the  bailee  of  the  contents  of  sealed 
packages  Is  to  prevent  him  from  exercising  the  care  he  would  otherwise  have 
given,  the  bailee  Is  liable  only  for  positive  misfeasance.  Gibbon  v.  Paynton, 
4  Burrows.  2298. 

602  Moses  V.  Railroad  Co.,  24  N.  H.  71,  91. 

«os  See  ante,  p.  306. 

•04  Batson  v.  Donovan,  4  Bam.  &  Aid.  21,  28. 

•OS  9  Wend.  85.  114. 


§    95]  TERMINATION    OF    LIABILITY    AS    COMMON    CAKUIKR.  447 

without  assent,  are  severable;   and,  though  contained  in  the  same 
paper,  one  may  be  rejected  and  the  other  enforced. °°* 


SAME— TERMINATION  OP  LIABILITY  AS  COMMON 
CARRIER. 

95.  A  common  carrier's  exceptional  liability  terminates 
"when  the  carriage  is  completed  according  to  the 
terms  of  the  contract.  This  -will  be  considered  un- 
der the  following  heads: 

(a)  Delivery  to  consignee  (p.  448). 

(b)  Delivery  to  a  connecting  carrier  (p.  463). 

(c)  Excuses  for  nondelivery  (p.  477). 

A  common  carrier's  liability,  as  such,  for  goods  which  are  car 
ried,  continues  until  the  duty  which  has  been  undertaken  is  fullv 
performed.*"'''  This  usually  occurs  when  the  possession  of  the 
goods  is  parted  with  according  to  the  terms  of  the  contract  of 
carriage,®"®  but  the  carrier's  exceptional  liability  may  come  to 
ian  end  while  possession  of  the  goods  is  retained,  and  the  carrier 

»o6  Oppenheimer  v.  Express  Co.,  69  111.  62;    Moses  v.  Railroad,  'Jt   N.    li 
7J ;  The  Majestic,  9  C.  C.  A.  161,  60  Fed.  624. 

60T  Carrier's  responsibility  ceases  when  transit  of  goods  Is  ended,  and  de- 
livery is  completed  or  waived  by  owner.  Stone  v.  Waitt  31  Me.  4U'J;  Dv 
Mott  V.  Laraway,  14  Wend.  225;  Michigan  Southern  &  N.  L  U.  Co.  v.  Day. 
20  111.  375;  Western  Transp.  Co.  v.  Newhall,  24  111.  466. 

cod  Carrier  must  obey  instructions  of  owner  or  shlpijer  of  goods  as  to 
their  deUvery.  Michigan  Southern  &  N.  I.  R.  Co.  v.  Day.  21  111.  375.  Car- 
rier's risk  ends  if  the  consignee  assumes  control  of  the  goods  before  tlioy 
have  arrived  at  place  of  delivery.  Stone  v.  Waitt,  31  Me.  409.  Carrier^ 
liability  cynnot  end  until  that  of  owner,  consignee,  or  warehouscm.in  hcL'tny 
^hie-ago  &  R.  I.  R.  Co.  v.  Warren,  16  111.  502.  Carrier,  by  assuming  r.la 
tlon  of  warehouseman  as  to  goods  in  his  charge.  Is  bound  only  to  use  ordi- 
nary care  and  diligence  in  keeping  them  safely.  Blumonthal  v.  Bralnerd.  ;is 
Vt.  402.  Failure  of  carrier  to  deliver  goods  at  usual  place  of  delivery,  and 
attempt  to  deliver  them  at  new,  unusual,  and  Ill-suited  place,  rosulting  In 
loss  of  goods,  makes  carrier  responsible  therefor,  on  ground  of  failure  to 
deliver  according  to  contract.     Beubow  v.  North  CaroUuu  IL  Co.,  Thil.   (N. 

a)  421. 


448  CARRIERS    OF    GOODS.  [Ch.   7 

be  liable  only  as  a  warehonseman.  The  different  ways  in  which 
liability  may  be  terminated,  and  the  time  at  which  the  carrier's 
duty  is  fully  performed,  will  now  be  considered  in  detaiL 

96.  DELIVERY    TO    CONSIGNEE— A    common    carrier's 
exceptional  liability  is  term.inated: 

(a)  By  a  personal  delivery  to  the   consignee,  -when   tlie 

contract  or  the  custom  in  the  particular  kind  of 
carriage  requires  it  (p.  448). 

(b)  By  notice  of  arrival   to  the  consignee,  and   reasona- 

ble opportunity  to  remove  the  goods.  This  is  the 
rule  for  carriers  by  -water,  and,  in  some  states,  for 
railroad  companies  (p.  452). 

(c)  By  arrival,  ready  for  delivery,  at  the  usual  depot  of 

the  railroad  company,  in  most  states  (p.  459). 

(d)  As  to  baggage,  by  the  lapse  of  a  reasonable  time  for 

its  removal  after  it  is  ready  for  delivery  (p.  469). 

Personal  Delivery  to  Consignee. 

A  carrier  may,  by  express  contract^  agree  to  make  a  personal 
delivery  of  the  goods  carried,  to  the  consignee.*''*  A  like  contract 
may  be  implied  from  the  custom  of  the  particular  kind  of  car- 
riage.®^" The  question  of  custom,  however,  seldom  arises,  at  the 
present  day,  because  the  duty  of  the  different  kinds  of  carriers 
to  make  a  personal  delivery  has  been  settled  by  adjudications 
which  make  the  duty  a  matter  of  law,  rather  than  of  custom. 

At  an  early  day,  when  all  goods  were  carried  upon  land,  in 
wagons,  it  was  the  duty  of  the  carrier  to  deliver  the  goods  to  the 

<oe  Hyde  v.  Navigation  Co.,  5  Term  R.  389. 

«io  Gibson  v.  Culver,  17  Wend.  305;  Schroeder  v.  Railroad  Co.,  5  Duer.  (N. 
Y.)  55;  Fisk  v.  Newton,  1  Denio  (N.  Y.)  45;  Van  Santvoord  v.  St  John,  6  Hill 
(N.  Y.)  157;  Loveland  v.  Burke,  120  Mass.  139,  142;  Eagle  v.  White,  6  Whart. 
(Pa.)  505,  517;  HemphUl  v.  Chenie,  6  Watts  &  S.  (Pa.)  62;  Farmers'  &  Mechan- 
ics' Bank  v.  Champlain  Transp.  Co.,  23  Vt,  186;  Huston  v.  Peters,  1  Mete. 
(Ky.)  558;  Bartlett  v.  The  Philadelphia,  32  Mo.  256;  Duflf  v.  Budd,  3  Brod. 
&  B.  177;  Birkett  v.  Willan,  2  Barn.  &  Aid.  356;  Hyde  v.  Navigation  Co.,  5 
Term  B,  389. 


§    96]  TERMINATION DF.I.IVKRY    TO    CONSIGNEE.  449 

consignee  personally,  or  at  his  place  of  residence  or  business.  This 
was  so  because  the  carrier  could  jjo  anywhere  with  his  wa;,'on8 
and  make  the  delivery.'"  For  this  kind  of  carriers  the  require- 
ments of  delivery  are  the  same  now."'  This  lule,  however,  ha» 
not  necessarily  been  extended  to  the  proprietors  of  stagecoach 
lines,  if  they  can  show  a  custom  to  leave  the  goods  at  their  stiige 
houses,  or  at  the  inns  where  the  coaches  stop,'  instead  of  making  a 
personal  delivery.  Carriers  by  water  are  not  required  to  make 
a  personal  delivery.*  Their  mode  of  transportation  makes  such  a 
delivers  impracticable.®^^  The  same  is  true  of  railroad  compa- 
nies. Their  cars  cannot  leave  the  rails,  and  so  personal  di^livery 
is  impossible  without  the  employment  of  some  additional  means 
of  transportation  at  the  several  stations.  Therefore  railroad  com 
panies  are  not  bound  to  make  a  personal  delivery.''*  P.ut  a  per- 
sonal delivery  to  the  consignee  is  a  part  of  the  duty  of  an  express 
company.  This  is  true  as  to  all  the  larger  places  at  which  an 
express  company  carries  on  its  business.®'*  But  at  small  way 
stations,  where  the  volume  of  business  will  not  justify  the  com- 
pany in  keeping  a  special  delivery  agent,  it  may  show  a  custom/ 

•  11  Fenner  v.  Railroad  Co.,  44  N.  Y.  505. 

612  pisk  V.  Newton,  1  Denio  (N.  Y.)  45;  Gibson  v.  Culver,  17  Wend.  iN.  Y.) 
305;  Storr  v.  Crowley,  1  McClel.  &  Y.  129;  Hemphill  v.  Chenie.  »',  Watts  &  S. 
(Pa.)  62;  Eagle  v.  White,  G  Whart  (Pa.)  505;  Barsemer  v.  Railway  Co.,  25 
Ind.  434. 

♦Gibson  v.  Cnlver,  17  Wend.  305. 

613  Cope  V.  Cordova,  1  Itawlo  (Pa.)  203;  Union  Steamboat  Co.  v.  Napp.  73 
IlL  506;    Cbickering  v.  Fowler,  4  Pick.  (Mass.)  3TL 

ei4  Hutch.  Carr.  (2d  Ed.)  §  367;  Merchants'  Dispatch  Transp.  (3o.  v.  Hallock, 
04  111.  2S4;  Thomas  v.  Railroad  C-orp.,  10  Mote.  (Mas.s.)  472;  Norway  Plains 
Co.  V.  Boston  &  M.  R.  Co.,  1  Gmy,  2G3;  Fenner  v  Railroad  Co..  44  N.  Y.  506. 
So  a  transportation  companj'  engaged  in  carrying  freight  over  rallroade  not 
owned  by  it  is  not  bound  to  make  a  personal  delivery.  Mcrclinnfs'  n>7witcb 
Transp.  Co.  v.  Hallock.  &4  111.  284. 

616  Baldwin  v.  Express  Co..  23  111.  197;  American  Merchain.s  i  m.  n  i.ii..  Co. 
V.  Schier,  55  111.  140);  Ameriran  .Morclinius'  L-'nion  Exp.  C<\  v.  Wolf.  79  III. 
430;  Witbeck  v.  Holland,  45  .N.  Y.  VA:  Aniciican  Inioii  Exp.  C^..  v.  Robin- 
son. 72  Pa.  St.  274:  Union  Exp.  Co.  v.  Uhlfiuau,  92  tM..  SL  323;  Marshall  T. 
Express  Co^  7  Wis.  1;  Southern  Exp.  Co.  v.  Armstead.  50  Ala.  ;{50:  Sul 
Uvan  V.  Thompson,  99  Mass.  259;   Bennett  v.  Express  Co..  U  Or.  49,  6  Pac.  160. 

LAW  BAIUt — 29 


450  CARRIERS    OF    GOODS.  [Ch.   7 

not  to  make  a  personal  delivery  to  the  consignee,  but  to  send  him 
prompt  notice  of  the  arrival  of  the  goods.' ^' 

When  personal  delivery  is  necessary,  it  must  be  made  at  a  rea- 
sonable time,'^^  and  to  the  consignee  himself,  or  to  some  one 
having  authority  to  receive  the  goods  for  the  consignee.*^*  So 
the  delivery  must  be  at  the  consignee's  office  or  residence.®^®  A 
delivery  at  the  foot  of  the  stairs,  when  the  consignee's  office  was 
in  the  fourth  story,  has  been  held  insuflficient.'^*'  If  personal  de- 
livery to  the  consignee  is  tendered,  and  he  refuses  to  accept,  or  fails 
to  pay  the  proper  charges  on,  the  goods,  the  carrier  has  performed 
his  duty,  and  his  exceptional  liability  is  at  an  end.'^^  The  car- 
rier may  store  the  goods  for  the  owner.®^^  So,  when  the  con- 
signee is  dead,  or  cannot  be  found  after  a  reasonable  endeavor  to 
do  so,  the  carrier  is  no  longer  responsible  for  the  goods  as  a  car- 
pjgj.  623  Bxit,  if  the  carrier  knows  that  the  goods  are  the  prop- 
erty of  the  consignor,  the  latter  must  be  notified  of  their  nonde- 
livery.®-*    When,  however,  the  carrier  is  not  informed  that  the 

818  Baldwin  v.  Express  Co.,  23  111.  197;  Gulliver  v.  Express  Co.,  38  IlL  503. 
It  has  been  held  that  the  consignor  must  have  known  of  the  usage  when  he 
shipped  the  goods,  or  he  is  not  bound  by  it.     Packard  v.  Earle,  113  Mass.  2S0. 

«i7  Marshall  v.  Express  Co.,  7  Wis.  1;  Merwin  v.  Butler,  17  Conn.  138.  De- 
livery to  the  teller  of  a  bank  after  banking  hours  has  been  held  a  good  de- 
livery, where  a  custom  was  shown  to  receive  express  packages  at  such  time. 
Marshall  v.  Express  Co.,  supra.  If  the  carrier  tenders  them  at  consignee's 
•store  after  business  houi-s,  when  store,  is  closed  and  hands  have  gone  away, 
consignee  may  refuse  to  receive  them,  and  carrier  will  remain  liable  as  car- 
rier.    Hill  V.  Humphreys,  5  Watts  &  S.  123. 

618  Southern  Exp.  Co.  v.  Everett,  37  Ga.  688;  Sullivan  v.  Thompson,  99  Mass. 
259. 

«i»  Gibson  v.  Culver,  17  Wend.  305;  Fisk  v.  Newton,  1  Denio  (N.  Y.)  45; 
Duff  v.  Budd,  3  Broad  &  B.  177;  Storr  v.  Crowley,  1  McClel.  &  Y.  129;  Hyde 
V.  Navigation  Co.,  5  Term  R.  389. 

620  llaslam  v.  Adams  Exp.  Co.,  G  Bosw.  (N.  Y.)  235. 

«2i  See  Storr  v.  Crowley,  1  McClel.  &  Y.  129. 

«22  Schouler,  Bailm.  513.    Cf.  Hawkins  v.  The  Hattie  Palmer,  63  Fed.  1015. 

82*  Adams  Exp.  Co.  v.  Darnell,  31  Ind.  20;  Marshall  v.  Express  Co.,  7  Wis. 
1;  Clendaniel  v.  Tuckerman,  17  Barb.  184;  Roth  v.  Railroad  Co.,  34  N.  Y. 
648;  Alabama  &  Tennessee  R.  R.  Co.  v.  Kldd,  35  Ala,  209;  Hasse  v.  Express 
Co.,  94  Mich.  133,  53  N.  W.  918. 

•»*  American  Merchants'  Union  Exp.  Co.  v.  Wolf,  79  LLL  430;  Stephenson  v. 
Hart,  4  Bing.  476,  484. 


§    96]  TERMINATION DELIVERY    TO    CONSIGNEE.  451 

consignor  is  owner,  there  is  no  duty  to  give  such  notice.""  Mr. 
Hutchinson,""  however,  thinlcs  the  better  rule  would  be  that  the 
consignor  should  be  presumed  to  be  the  owner  when  the  consignee 
refuses  to  receive  the  goods.'*^ 

Delivery  of  C.  0.  D.  Goods. 

When  goods  are  received  bj  a  carrier  for  transportation  C.  O.  D., 
the  contract  of  the  carrier  in  connection  therewith  is  not  only  for 
the  safe  carriage  and  delivery  of  the  goods  to  the  consignee,  but 
there  is  a  further  agreement  to  "collect  on  delivery,"  and  return 
to  the  consignor  the  amount  so  received."-*  The  common  law 
places  no  obligation  on  a  common  carrier  to  do  C.  O.  D.  business. 
Such  obligations  are  assumed  only  by  contract."-'*  Such  a  con- 
tract may,  however,  be  implied  from  a  previous  course  of  dfaling 
between  the  parties."'"  A  contract  of  this  kind  may  readily  be 
implied  when  an  express  company  receives  goods  marked  ''C.  O. 
D.,"  "'^  but  not  by  the  receipt  of  goods  so  marked,  by  a  ciirrier  not 
usually  doing  a  C,  O.  D.  business."^^  When  a  carrier  hiis  under- 
taken the  carriage  of  goods  C.  0.  D.  they  must  be  delivered  in 
accordance  with  the  instructions   of  the  consignor."^'     The   con- 

626  Kremer  v.  Express  Co.,  6  Coldw.  (Tenn.)  356;  Fisk  v.  Newton.  1  Ueiilo 
(N.  Y.)  45;  Weed  v.  Barney,  45  N.  Y.  344;  Neal  v.  Railroad  Co.,  8  Jones.  Law. 
482. 

620  Carriers  (2d  Ed.)  §  384. 

62T  In  ease  of  refusal  of  the  consignee  to  accept  perishable  poods.  It  may  be 
the  carrier's  duty  to  sell  them  for  the  owner's  account,  in  order  to  make  the 
loss  as  light  as  possible,  and  he  has  implied  authority  to  do  so.  Arthur  v. 
The  Cassius,  2  Story,  81,  Fed.  Cas.  No.  504;  Rankin  v.  Packet  Co.,  9  Ilelsk. 
564. 

6  28  United  States  Exp.  Co.  v.  Keefer,  59  Ind.  263.  As  to  the  liability  of  the 
carrier  for  the  safe  return  of  the  money,  see  ante,  p.  310.  note  40. 

629  American  Exp.  Co.  v.  Lesem,  39  111.  313;  Chicago  &  N.  R.  Co.  v.  .Mer- 
rill, 48  111.  425.  If  a  carrier  holds  himself  out  as  doing  a  C.  O.  D.  buslnps.s. 
"he  might  be  obliged  to  accept  goods  upon  such  terms  from  all  who  offered 
them."     Hutch.  Carr.  (2d  Ed.)  §  389. 

630  American  Exp.  Co.  v.  Lesem,  39  IlL  313. 

631  American  Exp.  Co.  v.  Lesem,  39  111.  313. 

632  Chicago  &  N.  R.  Co.  v.  Merrill,  48  111.  425;  Union  Raflroad  &  Tmta^ 
Co.  V.  Riegel,  73  Pa.  St  72. 

•18  Murray  v.  Warner,  55  N.  H.  546;   Meyer  v.  Lemcke,  31  Lud.  208;    Felber 


452  CARRIERS    OF    GOODS.  [Cll.    7 

signee  may  be  given  an  opportunity  to  inspect  the  goods,®'*  and 
a  reasonable  time  to  pay  the  charges.®'^  If  the  goods  are  re- 
fused when  a  delivery  is  tendered,  the  carrier's  liability  as  an  in- 
surer is  at  an  end,  and  the  cai'rier,  from  that  time,  holds  the  goods 
as  a  warehouseman,®'* 

Notice  of  Arrival — Carriers  by  Water. 

As  already  stated,  a  common  carrier  by  water  of  goods  con- 
signed to  one  not  the  owner  thereof  is  not  bound  to  deliver  the 
goods  to  the  consignee  thereof  in  person,  nor  at  his  warehouse.®'^ 
He  may  land  them  at  a  wharf  at  the  port  of  destination.®'^  In  the 
absence  of  a  provision  in  the  contract  of  carriage  as  to  w^here  the  de- 
livery shall  be  made,"^  the  carrier  is  to  deliver  at  the  usual  wharf.®*" 
In  the  absence  of  a  usage  to  the  contrary,  if  the  carrier  has  no  wharf 
at  the  port  of  delivery,®*^  the  consignee  may  require  delivery  at  any 
convenient  wharf. 

Where  there  is  but  one  consignee,  or  where  the  consignees  are 
unanimous,  as  between  two  points  within  the  port  equally  conven- 
ient for  the  carrier,  he  must  deliver  at  that  most  convenient  for 
the  consignee,  if  seasonably  asked  to  do  so.®*^     It  would  be  for  the 

V.  Telegraph  Co.  (Com.  PI.)  3  N.  Y.  Supp.  116:  Libby  v.  Ingalls,  124  Mass.  503. 
The  consignor  may,  however,  ratify  a  delivery  not  in  accordance  with  his  in- 
structions.    Rathbun  v.  Steamboat  Co.,  76  N.  Y.  376. 

834  Lyons  v.  Hill,  46  N.  H.  49.    And  see  Henick  v.  Gallagher,  60  Barb.  566. 

63  5  Great  Western  Ry.  v.  Crouch,  3  Hurl.  &  N.  183. 

836  Weed  V.  Barney,  45  N.  Y.  344;   Gibson  v.  Express  Co.,  1  Hun,  387. 

637  Richardson  v.  Goddard,  23  How.  28. 

838  Chickering  v.  Fowler,  4  Pick.  371. 

839  Johnston  v.  Davis,  60  Mich.  56,  26  N.  W.  830. 

840  Richmond  v.  Steamboat  Co.,  87  N.  Y.  240;  The  Boston,  1  Low.  464,  Fed. 
Cas.  No.  1,071;  The  E.  H.  Fittler,  1  Low.  114,  Fed.  Cas.  No.  4,311;  Montgomery 
v.  The  Port  Adelaide,  38  Fed.  753;  Devato  v.  823  Barrels  of  Plumbago,  20 
Fed.  510;  Gatliffe  v.  Bourne,  4  Bing.  N.  C.  314;  Salmon  Falls  Manufg  Co.  v. 
The  Tangier,  1  Cliff.  396,  Fed.  Cas.  No.  12.266. 

841  If  the  carrier  has  a  wharf,  it  is  the  proper  place  for  delivery.  Dixon  v. 
Dunham,  14  111.  324.    But  see  Arnold  v.  Steamship  Co.,  29  Fed.  184. 

842  Richmond  v.  Steamboat  Co..  87  N.  Y.  240;  Dixon  v.  Dunham,  14  111.  324; 
The  Sultana  v.  Chapman,  5  Wis.  454;  The  E.  H.  Fittler,  1  Low.  114,  Fed.  Cas. 
No.  4,311;  O'RouAe  v.  221  Tons  of  Coal,  1  Fed.  619;  Teilman  v.  Plock,  21  Fed. 
349;  The  Mascotte,  2  a  C.  A.  400,  51  Fed.  606. 


§    ^J(>]  TERMINATION DELIVERY    TO    CONSIGNEE.  1.03 

carrier  to  show  a  nsage  to  the  contrary,  and  then  to  establish 
its  reasonableness.  In  the  case  of  one  consi|,aiee  of  the  whole 
cargo,  having  his  place  of  business  at  the  port,  and  readily  access- 
ible, it  is  worthy  of  serions  consideration  wlulher  the  mastrr 
must  not  consult  with  him  at  all  events.*^' 

"WTiere  there  are  several  consignees,  the  case  is  difTrrent.  The 
master  cannot  conveniently  consult  them,  and  is  not  bound  to 
do  so.  In  such  cases  the  rule  is  that  the  majority — that  is.  those 
who  together  pay  more  than  half  the  freight — have  the  right  to 
choose  the  wharf.  This  is  reasonable,  because  it  is  of  no  special 
moment  to  the  minority  whether  the  master  or  the  majority 
choose  a  suitable  wharf,  and  it  is  as  convenient  and  just  a  mode 
of  ascertaining  the  majority  as  any  other.  But  the  clioice  must  be 
made  known  to  the  master  before  he  has  himself  come  under  lia 
bilities  to  the  wharfinger  of  a  wharf  chosen  by  himself.'** 

The  carrier  has  no  right  to  require  the  consignee  to  remove 
goods  on  Sunday,  or  on  a  legal  holiday  on  which  labor  is  forbid- 
den.**^ And  before  removal  by  the  consignee  is  required  the 
goods  must  be  jtlaccd  bj'  the  carrier  in  a  situation  suitable  for 
inspection  and  removal.  Until  this  is  done  the  carrier's  liability 
continues  as  an  insurer.**  ° 

The  duty  of  the  consignee  to  receive  and  take  the  goods  is  as 
imperative  as   the  duty   of  the  carrier  to  deliver.     Both   obliga- 
tions are  to  be  reasonably  construed,  having  reference  to  the  cir- 
cumstances.    The  stringent  liability  of  the  carrier  cannot  be  con- 
eys The  K  H.  Pittler,  supra, 

84*  The  E.  H.  Fittler,  supra;  The  Boston,  1  Low.  46-1,  Fed.  Cas.  No.  1.G71; 
Devato  v.  823  Barrels  of  Plumbago,  20  Fed.  510. 

«45  Richardson  v.  Goddard,  23  How.  28;  Gates  v.  Ryan.  37  Fe<l.  154.  See. 
as  to  the  Fourth  of  .July,  Russell  Manuf'g  Co.  v.  New  Haven  Steamboat  Co.. 
50  N.  Y.  121;    Scheu  v.  Benedict,  116  N.  Y.  510,  22  N.  E.  1073. 

646  The  Eddy,  5  Wall.  481;  The  Ben  Adams,  2  Ben.  445,  Fed.  Caa.  No.  1.2Sy; 
Goodwin  v.  Railroad  Co.,  58  Barb.  195.  Where  the  owner  of  a  Tes.sel  agrees, 
for  a  single  price,  to  transport  a  cargo  from  one  port  to  another,  and  allow 
storage  thereof  in  the  vessel  during  the  winter  following  the  voyage,  tils 
liability  as  carrier  ceased  on  arrival  at  port  of  desilnatlon.  and  ho  Is  ihen-- 
after  liable  as  a  warehouseman  only.  Norton  t.  The  Richard  Wlnalow.  <i7 
Fed.  259. 


454  CARRIERS    OF   GOODS.  [Ch.   7 

tinned  at  the  option,  or  to  suit  the  convenience,  of  the  consignee. 
The  consignee  is  bound  to  act  promptly  in  taking  the  goods,  and 
if  he  fails  to  do  so,  whatever  other  duty  may  rest  upon  the  car- 
rier in  respect  to  the  goods,  his  liability  as  insurer  is,  by  such 
failure,  terminated.®*®  If  the  consignee  is  present,  the  goods  may 
be  tendered  or  delivered  to  him  personally,  and  he  is  bound  to 
remove  them  veithin  a  reasonable  time.  If  he  is  not  present,  he 
is  entitled  to  reasonable  notice  from  the  carrier  of  their  arrival, 
and  a  fair  opportunity  to  take  care  of  and  remove  them.®*®  If  the 
consignee  is  unknown  to  the  carrier,  the  latter  must  use  proper 
and  reasonable  diligence  to  find  him;  and  if,  after  the  exercise  of 
such  diligence,  the  consignee  cannot  be  found,  the  goods  may 
be  stored  in  a  proper  place,  and  the  carrier  will  have  performed  his 
whole  duty,  and  will  be  discharged  from  liability  as  a  carrier.  But, 
for  want  of  diligence  in  finding  the  consignee  and  giving  notice 
of  the  arrival  of  the  goods,  the  carrier  is  liable  for  the  damages 
resulting  from  a  delay  in  the  receipt  of  the  goods  by  the  con- 
signee occasioned  by  such  want  of  diligence.®^"  When  the  con- 
signee is  unknown  to  the  carrier,  a  due  effort  to  find  him  is  a  con- 
dition precedent  to  a  right  to  warehouse  the  goods,  and,  as  no- 
tice to  the  consignee,  takes  the  place  of  a  personal  delivery  of 
the  goods;  and,  as  a  due  and  unsuccessful  effort  to  find  the  con- 
signee will  alone  excuse  the  want  of  such  notice,  it  follows  that, 
if  a  reasonable  and  diligent  effort  is  not  made  to  find  the  con- 
signee, the  carrier  is  liable  for  the  consequence  of  the  neglect. 
What  is  a  due  and  a  reasonable  effort,  and  what  is  proper  and  rea- 
sonable diligence,  depend  necessarily  very  much  upon  the  cir- 
cus Redmond  v.  Steamboat  Co.,  46  N.  Y.  578;  Hedges  v.  Railroad  Co.,  4t> 
N.  Y.  223:  Liverpool  &  Great  Western  Steam  Co.  v.  Suitter,  17  Fed.  695;  De 
Grau  V.  Wilson,  Id.  698. 

643  Ostrander  v.  Brown,  1.1  Johns.  39;  Zinn  v.  Steamboat  Co.,  49  N.  Y.  442; 
Price  v.  Powell,  3  N.  Y.  322;  Russell  Manufg  Co.  v.  New  Haven  Steamboat 
Co.,  50  N.  Y.  121;  McAndrew  v.  Whitlocli,  52  N.  Y.  40;  GleadeU  v.  Thomson, 
56  N.  Y.  194;  Crawford  v.  Claris,  15  111.  561;  Salmon  Falls  Manufg  Co.  v. 
The  Tangier,  1  Cliff.  396,  Fed.  Cas.  No.  12,266.  This  notice  must  be  actual. 
Publication  in  newspapei's  has  been  held  insuflicient.  Kohn  v.  Packard, 
3  La.  224;   Segura  v.  Reed,  3  La.  Ann.  695. 

ABO  Zinn  v.  Steamboat  Co.,  49  N.  Y.  442;  Sherman  v.  Railroad  Co.,  64  N.  Y. 
254;    Union  Steamboat  Co.  v.  Knapp,  73  IlL  500. 


§   96]  TERMINATION DEMVFRY    TO    CON.SICNEE.  4o5 

cumstances  of  each  case,  and,  in  the  nature  of  things,  is  a  ques- 
tion of  fact,  for  the  jury,  and  not  of  law,  for  the  court."" 

An  oflScer  of  the  customhouse,  on  board  a  ship  in  the  discharge 
of  his  official  duty  to  care  for  the  lawful  unloading  of  the  cargo, 
is  not,  as  such,  authorized  to  receive  the  goods,  and  a  discharge 
with  his  know^lcdge  and  assent  is  not  such  a  delivery  aa  relieves 
the  carrier  from  liability.""^ 

Reasonable  notice  and  reasonable  time  j.re  such  as  give  th»» 
consignee  time  enough,  under  all  proper  and  ordinary  circumstan- 
ces, and  proceeding  in  the  ordinary  mode  of  those  engaged  in  the 
same  business,  to  provide  for  the  care  and  removal  of  the  goods. 
And,  where  the  carrier  is  apprised  of  the  distance  the  goods 
are  to  be  carted  after  delivery,  such  distance  is  proper  to  be  con- 
sidered in  determining  the  question  as  to  what  is  reasonable. 
There  is  no  difference,  in  the  obligation  as  to  delivery,  between 
a  carrier  by  sea  and  a  carrier  by  inland  water. "''^  riowever.  the 
necessity  of  giving  notice  may  be  waived  by  a  custom  of  the  par- 
ties, as  where  the  consignee  is  accustomed  to  send  a  cartman  to 
the  wharf  each  day  for  any  goods  which  may  arrive.®**  Or  the 
carrier  may  show  a  usage  in  the  particular  kind  of  carriage  which 
dispenses  with  notice.""*  Notice  to  the  consignee  may,  of  course, 
be  waived  by  contract."*'  Such  usage  or  contract  will  not  relieve 
the  carrier  from  losses  caused  by  his  negligenca"*^ 

0  51  Zinn  v.  Steamboat  Co.,  49  N.  Y.  442. 
«52  McAndrew  v.  Whitlock,  52  N.  Y.  40. 

8  5.T  Id. 

6  54  Kussell  Manuf'ff  Co.  v.  Steamboat  Co..  50  N.  Y.  121;  Ely  v.  Steamboat 
Co.,  53  Barb.  207.  But  notice  to  consi^ee  of  arrival  of  goods  will  not  be 
excused  by  fact  that  custom  of  delivering  good.s  to  public  draymen  prevalLs 
.It  port  of  arrival.     Dean  v.  Vaccaro,  2  Head  (Tenn.)  488. 

snr,  Gibson  v.  Culver,  17  Wend.  305;  McMasters  v.  Kailroad  Co..  {?J  Va.  St. 
374;  Dixon  v.  Dunham,  14  111.  324;  Crawford  v.  Clark,  15  IlL  561;  Farmers' 
&  Mechanics'  Bank  v.  Chauiplaiu  Trausp.  Co.,  IG  Vt.  52,  23  Vt.  ISO;  Sleade 
V.  Payne,  14  La.  Ann.  457;  Stone  v.  Rice,  58  Ala.  95;  Gatllffe  v.  Bourni-.  4 
Bing.  N.  C.  314,  329;  Garside  v.  Navigation  Co.,  4  Term  R.  581.  This  usage 
need  not  be  shown  to  have  been  known  to  the  shipper,  as  ho  Is  presumed 
to  contract  with  reference  to  all  the  usages  of  the  particular  trade.  V.nn 
Santvoord  v.  St.  John,  6  Hill  (N.  Y.)  157,  167. 

«B6  The  Boskenna  Bay,  40  Fed.  91;   Heushaw  v.  Rowland.  5-1  N.  Y.  242. 

«67The   Surrey,  26  Fed.  791;    The  Spartan,  25  Fed.  44,  5G;    New  Jersey 


456  CARRIERS    OF    GOODS.  [Ch.   7 

Although  a  consignee  may  neglect  to  accept  or  receive  the  goods, 
the  carrier  is  not  thereby  justified  in  abandoning  them,  or  in  neg- 
ligently exposing  them  to  injury.®^*  The  law  enables  him  to 
wholly  exempt  himself  from  responsibility  in  such  a  contingency, 
by  giving  him  the  right  to  warehouse  the  goods.  When  this  is 
done,  he  is  no  longer  liable  in  any  respect,  and  if  they  are  sub- 
sequently lost  by  the  negligence  of  the  warehouseman  the  car- 
rier is  not  liable.  ®^°  But  so  long  as  he  has  tlie  custody  of  the 
goods,  although  there  has  been  a  constructive  delivery  which  ex- 
empts him  from  liability  as  carrier,  there  supervenes  upon  the 
original  contract  of  carriage,  by  implication  of  law,  a  duty,  as 
bailee  or  warehouseman,  to  take  ordinary  care  of  the  property.®"* 

Same — Railroad  Companies — New  Hampshire  Rule. 

In  some  states,  but  not  the  greater  number,  the  rule  as  to  de- 
livery by  a  railroad  company  is  the  same  as  for  a  carrier  by  water. 
The  leading  case  holding  this  rule  is  Moses  v.  Railroad  Co.®°^     In 

8team  Nav.  Co.  v.  Merchants'  Bank  of  Boston,  6  How.  344;  Bank  of  Ken- 
tucky V.  Adams  Exp.  Co.,  93  U.  S.  174;  Mynard  v.  Railroad  Co.,  71  N.  Y.  180; 
The  Hadji,  20  Fed.  875. 

f;5s  Hermann  v.  Goodrich,  21  Wis.  543;  Merwin  v.  Butler,  17  Conn.  138; 
Chickering  v.  Fowler,  4  Pick.  (Mass.)  371;  Dean  v.  Vaccaro,  2  Head  (Tenn.) 
488;  Shenk  v.  Steam  Propeller  Co.,  60  Pa.  St.  109;  Northern  v.  Williams,  0 
La.  Ann.  578;  Segura  v.  Reed,  3  La,  Ann.  095;  Tarbell  v.  Shipping  Co.,  110 
N.  Y.  170,  17  N.  E.  721;  Redmond  v.  Steamboat  Co.,  46  N.  Y.  578;  McAndrew 
V.  Whitlock.  52  N.  Y.  40;  The  City  of  Lincoln,  25  Fed.  835,  839;  Richardson 
V.  Goddard,  23  How.  28,  39;  The  Grafton,  1  Blatchf.  173,  Fed.  Gas.  No.  5,655. 
Where  consignee  is  unable,  or  refuses,  to  accept  goods,  carrier  must  secure 
them  in  place  of  safety,  and  will  not  be  justified  in  leaving  them  exposed  on 
wharf.     Ostrander  v.  Brown,  15  .Johns.  39. 

659  Redmond  v.  Steamboat  Co.,  46  N.  Y.  578. 

600  Tarbell  v.  Shipping  Co.,  110  N.  Y.  170,  17  N.  E.  721- 

««i  32  N.  H.  523.  TMs  rule  has  been  followed  in  the  following  cases: 
Anniston  &  A.  R.  Co.  v.  Ledbetter,  92  Ala.  326,  9  South.  73;  Columbus  &  W. 
Ry.  Co.  V.  Ludden,  89  Ala.  612,  7  South.  471;  Louisville  &  N.  R.  Co.  v.  Oden, 
80  Ala.  38;  Missouri  Pac.  Ry.  Co.  v.  Nevill,  60  Ark.  375,  30  S.  W.  425;  Mis- 
souri Pac.  Ry.  Co.  v.  Wichita  Wholesale  Grocery  Co.  (Kan.  Sup.)  40  Pac.  899; 
Leavenworth,  L.  &  G.  R.  Co.  v.  Maris,  16  Kan.  333  (and  see  Union  Pac.  R.  Co. 
v.  Moyer,  40  Kan.  184,  19  Pac.  G39);  .Teffersonville  R.  Co.  v.  Cleveland,  2 
Bush  (Ky.)  468;  Maignan  v.  Railroad  Co.,  24  La.  Ann.  333;  Buckley  v.  Rail- 
way Co.,  18  Mich.  121;  Feige  v.  Railroad  Co.,  62  Mich.  1,  28  N.  W.  685;  Pin- 
ney  v.  Railroad  Co.,  19  Minn.  251   (Gil.   211);    Derosia  v.  Railroad  Co.,   18 


§    96]  TERMINATION DEI.IVEKY    TO    C»N8IGNEK.  4.07 

this  case  it  was  said  that  the  railroad  companies'  responwiljilitj 
as  common  carriers  for  the  goods  in  their  charge  "ceases  onlj 
when  they  hare  reached  their  destination,  and  their  control  over 
them  as  carriers  has  terminated.  That  control  must  continue  un- 
til delivery,  or  a  tender  or  offer  to  deliver,  or  some  other  act  which 
the  law  can  regard  as  equivalent  to  a  delivery.  The  delivery  of 
goods  conveyed  by  railroad  is  necessarily  confined  to  certain  points 
on  the  line  of  the  railroad  track.  Railroad  companies  cannot,  like 
wagoners,  pass  from  warehouse  to  warehouse,  and  there  discharge 
their  freight  to  the  various  consignees,  upon  their  own  premises. 
They  consequently  establish  certain  points  as  places  of  d«livery, 
and  there  unlade  their  cars  of  such  of  the  freight  as  may  most 
conveniently  find  its  ultimate  destination  from  those  respective 
points.  But  while  it  is  in  the  process  of  unloading,  and  after- 
wards, while  awaiting  removal,  it  must  be  protected  from  the 
weather  and  from  depredation.  Freight  is  brought  over  the  road 
at  all  hours,  by  night  as  w^ell  as  by  day,  and  the  trains  must  nec- 
essarily be  more  or  less  irregular  in  the  hours  of  their  ;u*rival. 
It  cannot  be  required  of  the  consignee  to  attend  at  the  precise  mo- 
ment when  his  goods  arrive,  to  receive  and  take  care  of  them,  and 
the  company  cannot  discharge  themselves  from  responsibility  by 
leaving  them  in  an  exposed  condition  in  the  open  air."     Under 

MiBn.  133  (GU.  119);  Kirk  v.  Railway  Co.  (Minn.)  60  N.  W.  1084;  Mills  v. 
Railroad  Co.,  45  N.  Y.  622;  Hedges  v.  Railroad  Co.,  49  N.  Y.  22;};  Rawsou  v. 
Holland,  59  N.  Y.  Oil;  McKinney  v.  Jewett,  90  N.  Y.  267;  McDonald  v.  Rjiil- 
nad  Co.,  34  N.  Y.  497;  Fenner  v.  Railroad  Co.,  44  N.  Y.  505;  Sprague  v. 
Railroad  Co.,  52  N.  Y.  637;  Faulkner  v.  Hart,  82  N.  Y.  413;  Pelton  v.  Railroad 
Co.,  54  N,  Y.  214;  Tarbell  v.  Shipping  Co.,  110  N.  Y.  170.  17  N.  E.  721;  Lake- 
Erie  &  W.  R.  Co.  V.  Hatch  (Ohio  Sup.)  39  N.  E.  1042;  Gaines  v.  Insunince  Co., 
28  Ohio  St.  418;  Hirsch  v.  The  Qnalvor  City,  2  Disn.  (Ohio)  144;  I^ke  Erie 
&  W.  R.  Co.  T.  Hatch,  6  Ohio  Cir.  Ct.  230;  Ouimlt  9.  Henshaw,  35  Vt  604; 
Blumenthal  v.  Brainerd,  38  Yt.  402;  Wiuslow  v.  Railroad  Co..  42  Vt.  700; 
Wood  V.  Crocker,  18  Wis.  345;  Parker  v.  Railway  Co.,  30  Wis.  6S9;  Lomke  v. 
Railway  Co.,  39  Wis.  449;  Michigan  Cent  R.  Co.  v.  Mineral  Springs  Manurg 
Co.,  16  Wall.  318.  This  is  also  the  rule  in  England.  MltcheU  v.  Hallway 
Co.,  L.  R.  10  Q.  B.  256.  In  a  number  of  states  there  are  statutory  provlHlons 
on  the  subject:  Georgia,  Code  1SS2,  §  2070;  Missouri.  Rev.  St  1879.  S  52S<i; 
California,  Pol.  Code,  §  3155;  Colorado,  Gen.  St.  1883,  5  3435;  Texas.  Sayles" 
Civ.  St.  art.  281;  Nevada,  Gen.  St  1885,  §  4964;  Alabama,  Code  1SK6.  t  1183; 
Minnesota,  Gen.  St  1S94,  §  2107.     See  1  SUm.  Am.  St  Law,  {  4352. 


458  CARRIERS    OF   GOODS.  [Ch.  7 

this  rule  the  carrier  mast  notify  the  consignee  of  the  arrival  of  the 
goods,  and  allow  a  reasonable  time  for  their  removal.^'^  The  ex- 
tent of  the  reasonable  opportunity  to  be  afforded  the  consignee  for 
removal  is  not  to  be  measured  by  any  peculiar  circumstances  in 
his  own  condition  and  situation,  rendering  it  necessary,  for  his 
own  convenience  and  accommodation,  that  he  should  have  longer 
time  or  better  opportunity  than  if  he  resided  in  the  vicinity  of  the 
warehouse,  and  was  prepared  with  the  means  and  facilities  for 
taking  the  goods  away.®*^  If  his  particular  circumstances  re- 
quire a  more  extended  opportunity,  the  goods  must  be  considered 
after  such  reasonable  time  as,  but  for  those  peculiar  circumstan- 
ces, would  be  deemed  suflBcient,  to  be  kept  by  the  company  for  his  con- 
venience, and  under  the  responsibility  of  bailees  for  hire  only.*®*  Un- 
til the  goods  have  passed  out  of  the  custody  and  control  of  the  car- 
rier into  the  hands  of  the  proper  person  to  receive  them,  they  have 
a  duty  to  perform,  in  the  preservation  and  protection  of  the  prop- 
erty, even  after  their  responsibility  as  common  carriers  is  at  an 
end.''^  If  the  owner  or  consignee,  or  other  person  authorized  to 
receive  the  goods,  is  present  at  the  time  of  the  arrival,  and  has 
opportunity  to  see  that  they  have  arrived,  and  to  take  them  away, 

662  Roth  V.  Railroad  Co.,  34  N.  Y.  548;  Hedges  v.  Railroad  Co.,  49  N.  Y. 
223;  Lemke  v.  Railway  Co.,  39  "Wis.  449.  Where  a  piano,  which  could  have 
been  removed  from  the  canier's  depot  in  about  an  hour,  was  shipped  over 
a  continuous  line  of  railroad,  and  the  distance  from  the  place  of  shipment 
to  the  destination  is  such  that  the  property  might  reasonably  have  been 
expected  to  arrive  on  the  day  of  the  shipment  or  the  next  day,  and  it  is  al- 
lowed to  remain  three  days  after  its  arrival,  the  carrier  was  held  liable  only 
as  a  warehouseman.  Columbus  &  W.  Ry.  Co.  v.  Ludden,  89  Ala,  612,  7 
South.  471.  And  see  Anniston  &  A.  R.  Co.  v.  Ledbetter,  92  Ala.  326,  9  South. 
73.  Where  the  goods  were  ready  for  delivery  on  the  10th,  but  not  called 
for  till  the  16th,  It  was  held  more  than  a  reasonable  time,  and  that  liability 
as  a  common  carrier  had  ceased.  Derosia  v.  Railroad  Co.,  18  Minn.  133 
(GIL  119).  So  eight  days  was  held  more  than  a  reasonable  time  in  Railroad 
Co.  V.  Maris,  16  Kan.  333. 

603  Moses  V.  Railroad,  32  N.  H.  523;  Wood  v.  Crocker,  18  Wis.  345;  Lemke 
v.  Railway  Co.,  39  Wis.  449;  Derosia  v.  Railroad  Co.,  18  Minn.  133  (Gil. 
119);  Pinney  v.  Railroad  Co.,  19  Minn.  251  (Gil.  211);  Railroad  Co.  v.  Maris, 
16  Kan.  333. 

664  Moses  V.  Railroad,  32  N.  H.  523;  Frank  v.  Railway  Co.,  57  Mo.  App.  181- 

66  5  Smith  V.  Railroad,  7  FosL  (N.  H.)  86. 


§    •'(>]  TEUMINATION DELIVKUY    TO    CONSIGNEE.  \./J 

this  may  be  regarded  as  equivalent  to  a  delivery.  They  must  be 
understood,  after  tliis,  to  remain  in  the  charge  of  the  company  as 
bailees  for  hire."®'  The  carrier's  liability  is  from  that  time  that 
of  a  bailee  for  hire,  and  not  a  gratuitous  bailee.""^  The  carrier's 
duty  towards  goods  left  in  its  charge  after  the  liability  as  a  com 
men  carrier  is  at  an  end  is  that  of  a  warehouseman,  and  the  cai- 
rier  may  charge  a  reasonable  amount  for  the  storage  of  the 
goods.'**  The  requirements  as  to  delivei-y  by  a  i-ailroad  company 
may  be  varied  by  contract  or  custom.^®* 

Arrival  at  Depot — Massachusetts  Rule. 

In  the  greater  nunber  of  states,  the  rule  requiring  notice  to  tin 
consignee  is  repudiated,  and  it  is  held  that  the  liability  of  a  railroad 
company  as  a  common  cainer  terminates,  and  its  responsibility  aa  a 
warehouseman  commences,  upon  the  arrival  of  the  goods  at  the  point 
of  destination,  and  deposit  there  in  the  warehouse  of  the  company,  to 
await  the  convenience  of  the  consignee,  without  notice  of  the  arrival 
of  the  freight  being  given  the  consignee.^^"     The  leading  case  sup 

«««  Moses  V.  Railroad,  32  N,  H.  523. 

687  Miller  v.  Mansfield,  112  Mass.  2(;0;  Barron  v.  Eldredge,  100  Mass.  4.'>r); 
Goold  V.  Cbapin,  20  N.  Y.  259;  Weed  v.  Barney,  45  N.  Y.  344;  Tarbell  v.  Ship- 
ping Co.,  110  N.  Y.  170,  17  N.  E.  721;  Brown  v.  Railway,  54  N.  H.  535;  Kcii 
nedy  v.  Railroad  Ck).,  74  Ala.  430;  Alabama  &  T.  R.  R.  Co.  v.  Kidd,  35  Ala. 
209;  Cairns  v.  Robins,  8  Mees.  &  W.  258;  MitcbeU  v.  iiailway  Co.,  L.  i:.  10 
Q.  B.  256. 

««8  White  V.  Humphery,ll  Q.  B.  Div.  43;  Cairns  v.  Robins,  8  Mees.  &  W.  258. 

669  McMasters  v.  Railroad  Co..  69  Pa.  St.  374;  Dresbach  v.  Railroad  Co.. 
57  Cal.  462;  South  &  N.  A.  B.  Co.  v.  Wood.  66  Ala,  167;  Louisville  &  N.  R. 
Co.  v.  Gilmer,  89  Ala.  534,  7  South.  654.  Where  the  carrier  and  shipper,  by 
special  contract,  stipulate  for  notice,  without  any  limitations  or  conditions, 
the  reasonable  time  for  removal  commences  from  the  time  of  the  notice,  and 
not  from  that  of  the  arrival  of  goods.     Railroad  Co.  v.  Marls,  16  Kan.  3."i3. 

670  Jackson  v.  Railway  Co.,  23  Cal.  268  (but  see  Wilson  v.  Railroad  Co..  91 
Cal.  166,  29  Pac.  861);  Southwestern  Railroad  Co.  v.  Folder.  46  Ga.  43;{: 
Rome  R.  Co.  v.  Sullivan,  14  Ga.  277,  282;  Porter  v.  Railroad  Co..  20  111.  4UT: 
Richards  v.  Railroad  Co.,  20  111.  404;  Chicago  &  A.  R.  Co.  v.  Scott,  42  111. 
132;  Merchants'  Dispatch  Transp.  Co.  v.  Hallock,  64  111.  284;  Rothschild  v. 
Railroad  Co.,  69  111.  104;  Bansemer  v.  Railway  Co.,  25  Ind.  43  J;  Cincinnati 
&  Chicago  Air  Line  R.  Co.  v.  McCool,  26  Ind.  140;  Pittsburgh,  C.  «&  St.  l^ 
Ry.  Co.  V.  Nash,  43  Ind.  423,  426;  Mohr  v.  Railroad  Co..  40  Iowa,  579;  Francis 
V.  Railroad  Co.,  25  Iowa,  60;   Independence  Mills  Co.  v.  Burliugion,  C.  R.  &■ 


460  CARRIERS    OF    GOODS.  [Ch.   7 

porting  this  rule  is  Norway  Plains  Co.  v.  Railroad  Co.'^*  The  de- 
cision was  put  upon  the  ground  that  from  the  necessary  conditions  of 
the  business  of  railroad  corporations,  and  from  their  practice  to  have 
platforms  on  which  to  place  goods  from  the  cars  in  the  first  instance, 
and  wa,rehouse  accommodations  by  which  they  may  be  securely 
stored,  the  goods  of  each  consignment  by  themselves,  in  accessible 
places,  ready  to  be  delivered,  the  whole  duty  assumed  by  the  railroad 
corporation  is  to  carry  the  goods  safely  to  the  place  of  destination, 
and  there  discharge  them  upon  the  platform,  and  then  and  there  de- 
liver them  to  the  consignee  or  party  entitled  to  receive  them,  if 
he  is  th.e,re  ready  to  take  them  forthwith,  or,  if  he  is  not  there,  ready 
to  take  them,  then  to  place  them  securely,  and  keep  them  a  reason- 
able time,  ready  to  be  delivered  when  called  for;  that  delivery  from 
themselves  as  common  carriers  to  themselves  as  keepers  for  hire  dis- 
charges their  resjMjnsibility  as  common  carriers;  that  they  are  respon- 
sible as  common  carriers  until  the  goods  are  removed  from  the  cai'S 
and  placed  on  the  platfona;  that  if,  on  account  of  their  arrival  in 
the  night,  or  at  any  other  time  when,  by  the  usage  and  cou.rse  of 
business,  the  doors  of  the  merchandise  depot  or  warehouse  aie  closed, 
or  for  any  other  cause  they  cannot  then  be  delivered,  or  if  for  any 
reason  the  consignee  is  not  there  ready  to  receive  them,  it  is  the  duty 
of  the  company  to  store  them  and  preserve  them  safely,  under  the 
charge  of  competent  and  careful  servants,  ready  to  be  delivered,  and 
actually  deliver  them  when  duly  called  for  by  parties  authorized  and 
entitled  to  receive  them;  and  for  the  performance  of  these  duties, 
after  the  good''  are  delivered  from  the  cars,  the  company  are  liable 
as  warehousemen  or  keepers  of  goods  for  hire.  In  short,  the  railroad 
corporation  ceases  to  be  a  common  carrier,  and  becomes  a  warehouse- 
man, as  matter  of  law,  when  it  has  completed  the  duty  of  transporta- 
tion, and  assumed  the  position  of  warehouseman,  as  matter  of  fact  and 

X.  Ry.  Co.,  72  Iowa,  535,  34  N.  W.  320;  Norway  Plains  Ck).  v.  Boston  &  M. 
R.  Co.,  1  Gray,  263;  Rice  v.  Hart,  118  Mass.  201;  Holtzclaw  v.  Uuffi,  27 
Mo.  392;  Gashweiler  v.  Railway  Co.,  83  Mo.  112;  Rankin  v.  Railroad  Co.,  55 
Mo.  167;  Buddy  v.  Railway  Co.,  20  Mo.  App.  206;  Pindell  v.  Railway  Co.,  34 
Mo.  675,  683;  Neal  v.  Railroad  Co.,  8  Jones  (N.  C.)  482;  Morris  &  E,  R.  Co. 
V.  Ay  res,  29  N.  J.  Law,  393;  McC^rty  v.  Railroad  Co^  30  Pa.  St  247;  Shenk 
V.  Propeller  Co.,  60  Pa,  St  109. 
eTi  1  Gray,  263. 


§    96]  TERMINATION DELIVERY    TO    CONSIGNEE.  461 

aecoi'ding  to  the  usages  and  necessities  of  tlie  business  in  wliioh  it 
is  engaged.'^*  In  cases  where  the  consignee  is  to  unload  the  car,  the 
carrier's  liability  does  not  terminate  by  the  mere  arrival  of  the  car 
at  the  station.  It  must  first  be  put  in  a  proper  place  for  unload- 
jjjg  678  Thus,  it  has  been  held  that  the  liability  of  a  railroad  com 
pany  as  carrier  of  wheat  in  bulk  does  not  cease  until  it  has  placed  the 
car  containing  it  in  such  a  position  at  the  place  of  destination  that  it 
can,  with  safety  and  a  reasonable  degree  of  convenience,  be  un 
loaded  by  the  consignee.  And  if  the  car  containing  the  wheat  be 
left  in  a  position  where  it  cannot  be  conveniently  unloaded,  and 
while  there  is  destroyed  by  fire,  the  company  will  be  liable  for  the 
loss,  although,  as  a  physical  fact,  the  car  could  have  been  unloaded 
in  such  position.®^*  As  already  stated, ^^'^  a  railroad  company  is  a 
common  carrier  of  the  cars  of  another  company  which  it  hauls 
over  its  tracks.  The  carrier's  liability  as  such  terminates  with 
the  delivery  of  the  ears  to  the  consignee,  whether  on  the  carrier's 
own  track,  or  on  the  private  track  of  the  consignee."^"  If  the 
cars  are  to  be  returned  by  the  railroad  company  after  they  are 
unloaded,  the  liability  may  be  said  to  be  suspended  while  under 
the  consignee's  control.  When  the  cars  are  delivered  to  the  con- 
signee on  the  switch  track,  they  have  reached  their  destination; 
and  while  the  cars  are  under  the  control  of  the  consignee  the  lia- 
bility of  the  carrier  is  suspended,  to  again  attach  when  the  cars 
are  ready  for  further  transportation.  In  the  interim — which  might 
be  for  a  shorter  or  longer  period  of  time,  as  determined  by  a  party 
over  whom  the  carrier  has  no  control,  and  for  whose  acts  it  is  in 
no  wise  responsible — the  carrier,  although  the  cars  are  standing 
upon  its  switch  tracks,  has  no  such  control  as  authorizes  it  to  take 
the  cars  elsewhere  for  safety;    and  it  is  manifestly  unjust,  and  in 

•7  2  Rice  V.  Hart,  118  Mass.  201. 

«7s  Independence  Mills  Ck).  v.  Burlingrton,  C.  R.  &  N.  Ry.  Co.,  72  Iowa,  535, 
34  N.  W.  320;  East  Tennessee,  V.  &  G.  K.  CJo.  v.  Hunt.  15  Lea  (Teun.)  ii61. 

•  74  Independence  Mills  Co.  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  supra. 

67 B  Ante,  p.  312. 

«7«  East  St.  Louis  C.  Ry.  Co.  v.  Wabasb.  St  L.  &  P.  Ky.  Co..  123  III.  HDJ.  V> 
N.  E.  45;  Peoria  &  P.  U.  R.  Co.  v.  United  States  Rolling  Stock  Co..  I'M  III. 
G43,  27  N.  E.  59. 


462  CARRIERS    OF    GOODS.  [Ch.   7 

consistent  with  the  reason  for  applying  the  rule,  to  hold  it  respon- 
sible during  that  time  as  an  insurer.*^' 

Baggage. 

The  exceptional  liability  of  a  carrier  of  fcaggage  is  terminated 
when  the  owner  has  had  a  reasonable  time  to  remove  it  after  it 
has  been  unloaded  by  the  carrier,  and  placed  in  a  situation  for  de- 
livery.^^*  No  notice  to  the  owner  of  the  arrival  of  the  baggage 
has  been  held  necessary  in  any  state,  since  it  arrives,  in  the  ordi- 
nary course  of  transportation,  on  the  same  train  as  the  owner.  It 
is  thus  seen  that  the  rule  as  to  the  termination  of  liability  for  bag- 
gage lies  between  the  two  conflicting  rules  as  to  freight.  It  dif- 
fers from  the  New  Hampshire  rule  in  that  no  notice  need  be  given, 
and  from  the  Massachusetts  rule  in  holding  the  carrier's  liability 
as  an  insurer  to  continue  after  it  has  the  baggage  ready  to  deliver, 
until  the  owner  has  had  a  reasonable  time  to  remove  it.  This 
time,  however,  is  much  less  than  is  allowed  under  the  New  Hamp- 
shire rule  for  removing  freight.*"'*  In  fact,  the  passenger  is  re- 
quired to  take  away  his  baggage  almost  immediately.  Thus,  it 
has  been  held  in  several  cases  that,  when  the  train  carrying  the 
passenger  and  his  baggage  arrived  at  night,  it  was  an  unreason- 
able delay  to  permit  it  to  remain  until  the  next  morning.'®"  Ajid. 
of  course,  any  longer  delay  would  relieve  the  carrier.*®^  But,  if 
the  fault  of  the  carrier  has  caused  the  delay,  its  liability  is  not  ter- 

87  7  Peoria  &  P.  U.  R.  Co.  v.  United  States  Rolling  Stock  Co.,  136  111.  M3, 
27  N.  E.  59. 

«7  8  Ouimit  V.  Henshaw,  35  Vt.  604;  Hoeger  v.  Railway  Co.,  63  Wis.  100, 
23  N.  W.  435;   Patscheider  v.  Railway  Co.,  3  Exch.  Div.  153. 

B7  9  Chicago  &  A.  R.  Co.  v.  Addizoat,  17  111.  App.  632;  Patscbeider  v.  Rail- 
way Co.,  supiu. 

8  80  Jacobs  V.  Tutt,  33  Fed.  412;  Lousiville,  C.  &  L.  R.  Co.  v.  Mahan,  8  Bush 
(Ky.)  184;  Rotb  v.  Railroad  Co.,  34  N.  Y.  548;  Ross  v.  Railroad  Co.,  4  Mo. 
App.  582.  The  fact  that  the  arrival  is  on  Sunday,  and  there  is  a  statute  pro- 
hibiting travel  on  that  day,  wiU  not  excuse  the  delay.  Jones  v.  Transporta- 
tion Co.,  50  Barb.  11)3.  Nor  will  the  illness  of  the  passenger.  Chicago,  R. 
I.  &  P.  R.  Co.  v.  Boyce,  73  111.  510. 

881  Hoeger  v.  Railway  Co.,  63  Wis.  100,  23  N.  W.  435;  Van  Horn  v. 
Kermit,  4  E.  D.  Smith,  453;  Jones  v.  Transportation  Co.,  50  Barb.  193;  Bumell 
V.  Railroad  Co.,  45  N.  Y.  184;  Holdridge  v.  Railroad  Co.,  56  Barb.  191. 


§  97]  ti:kmination — delivery  to  connecting  cakkikk.  UV.j 

minatcd.'"  If  the  passenger  has  not  removed  his  b;ig<;ag.'  within 
a  reasonable  time,  the  carrier  is  not  relieved  of  all  liability,  but 
continues  responsible  as  a  warehouseman.""*  *   ^-^  ~7 

n; — — t»..-jL-  J^-*--»  P-^     /  0  ^ 

97.  DELIVERY  TO  CONNECTING  CARRIER  —  Where 
goods  are  received  to  be  transported  over  connect- 
ing Lines,  the  first  carrier  is  not  liable  for  loss  or 
injury  occurring  beyond  its  own  line,  unless,  by 
special  contract,  he  undertakes  to  convey  the  goods 
to  their  destination. 
EXCEPTION — In  England  and  a  few  American  states 
the  first  carrier  is  liable  unless,  by  special  contract, 
his  liability  is  limited  to  losses  occurring  on  his 
own  line. 

The  common-law  obligations  of  a  common  carrier  to  a  connect- 
ing line  are  the  same,  as  to  reception,  transportation,  and  delivery 
of  freight,  as  those  existing  between  a  carrier  and  an  individual 
shipper.'**  The  main  questions  in  such  cases  are  as  to  when  the 
liability  of  the  first  carrier  to  the  shipper  terminates,  and  which 
of  the  connecting  carriers  is  responsible  for  loss  or  damage  to  thr 
goods  carried. 

082  Dininny  v.  Railroad  Co.,  49  N.  Y.  rAC:  Kansas  City.  Ft.  S.  i^  C.  U.  O). 
V.  Morrison,  34  Kan.  502,  9  Pac.  225;  Prickett  v.  New  Orleans  Anchor  Line, 
13  Mo.  App.  43G.  But  see  Cliicago  &  A.  K.  Co.  v.  Addizuat,  17  111.  App.  (i32. 
Where  a  boat  was  delayed,  and  arrived  in  port  during  the  night,  it  was  held 
that  the  voyage  was  not  ended  until  passengers  who  remained  on  board  by 
the  master's  permission  had  had  a  reasonable  time  on  the  next  morning  to 
leave  the  boat  and  to  remove  their  baggage,  and  that  the  carrier  was  liable 
to  passengers  so  remaining  on  board  for  loss  of  baggage  occasioned  by  the 
accidental  burning  of  the  vessel  during  the  uighu  I'rkkcU  v.  Now  Orleans  An 
chor  Line,  supra. 

08J  Burnell  v.  Railroad  Co.,  45  N.  Y.  184;  Mattisou  v.  luulroad  Co..  57  N.  V. 
552;  Fairfax  v.  Railroad  Co.,  67  N.  Y.  11;  Chicago.  R.  I.  &  P.  It  Co.  v.  Kalr- 
clough,  52  111.  106;  Bartholomew  v.  Railroad  Co.,  53  111.  227;  Mote  v  Railroad 
Co.,  27  Iowa,  22;  Rome  R.  v.  Wimbcrly.  75  Ga.  316.  Ab  to  what  is  a  pr-iper 
place  to  store  the  baggage,  see  Hoeger  v.  Railway  Co..  63  Win.  loo,  23  N.  V\ . 
435;   St.  Louis  &  C.  R.  Co.  v.  Hardway,  17  Rl.  App.  331. 

68^  Shelbyville  R.  Co.  v.  Louisville,  C.  .ik:  L.  R.  Co.,  b2  Ky.  541. 


464  CARRIERS    OF    GOODS.  [Cil.   7 

Who  are  Connecting  Carriers, 

A  connecting  carrier  is  one  whose  route,  not  being  the  first  one, 
lies  somewhere  between  the  point  of  shipment  and  the  point  of 
destination.  It  becomes  such  by  virtue  of  the  agreement  between 
the  consignor  or  shipper  and  the  first  carrier,  whereby  the  latter 
undertakes  to  deliver  the  shipment  at  its  ultimate  destination,  and 
thus  makes  the  carrier  beyond  its  own  route  its  agent  for  contin- 
uing the  transportation,  or  else  undertakes  only  to  deliver  the 
goods  safely  to  the  next  carrier  on  the  route,  who  thus  becomes 
the  agent  of  the  shipper  for  carrying  them  further.'^^  Thus,  a 
transfer  company  carrying  the  goods  from  the  depot  at  the  station 
of  destination  to  the  consignee's  business  house  is  not  a  connecting 
carrier.®^®  Nor  is  a  railroad  company  which  hauls  cars  over  its 
tracks  from  the  last  carrier's  depot  to  the  consignee's  mill,  at 
which  delivery  was  required  to  be  made  by  the  bill  of  lading.®*' 

When  Delivery  to  Connecting  Carrier  is  Complete. 

When  goods  are  received  by  a  carrier  to  be  transported  to  a 
point  beyond  its  own  line,  under  circumstances  which,  as  will  be 
seen  in  the  succeeding  paragraphs,  make  the  carrier  liable  as  an 
insurer  only  to  the  end  of  its  own  line,  there  is  nevertheless  su- 
peradded to  its  duty  as  a  common  carrier  that  of  a  forwarder  by 
the  connecting  line;  that  is,  to  deliver  safely  the  goods  to  such 
line, — ^the  next  carrier  on  the  route  beyond.  This  forwarding  duty 
arises  from  the  obligation  implied  in  taking  the  goods  for  the 
point  beyond  its  own  line.®**     Until  this  duty  is  performed,  the 

0S5  Nanson  v.  Jacob,  12  Mo.  App.  125,  127. 

686  Id. 

«87  Western  «&  A.  R.  Co.  v.  Exposition  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916. 
But  see  Missouri  Pac.  R.  Co.  v.  Wichita  Wholesale  Grocery  Co.  (Kan.  Sup.) 
40  Pac.  899. 

68  8  Myrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425.  If  the  first  car- 
rier disregards  the  shipper's  orders,  and  forwards  the  goods  by  a  different 
carrier,  it  is  liable  for  any  loss  sustained  by  the  shipper.  Isaacson  v.  Railroad 
Co.,  94  N.  Y.  278;  Johnson  v.  Railroad  Co.,  33  N.  Y.  610;  Georgia  R.  Co.  v. 
Cole,  68  Ga.  623;  Langdon  v.  Robertson,  13  Ont.  497.  A  common  carrier 
who  undertakes  to  transport  goods  over  his  own  route,  and  then  to  forward 
them  to  a  designated  destination  beyond,  is  bound  to  transmit,  with  their 
delivery  to  the  carrier  next  en  route,  all  special  instructions  received  by  hiro 
from  the  consignor,  and,  iu  default  thereof,  make  good  any  loss  resulting  from 


§    97]  TERMINATION DELIVERY    TO    CONNECTING    CARIUKR.  465 

first  carrier  continues  liable  as  an  insurer.  The  delivery  to  the 
connecting  carrier  must  be  an  actual  delivery,  or  acts  which  are 
so  far  equivalent  to  a  delivery  as  make  the  next  line  assume  the 
relation  of  a  carrier  to  the  goods.^*"  The  first  carrier  does  not, 
by  unloading  the  goods  at  the  end  of  its  line,  become  a  warehouse 
man."®"     The  shipper  delivers  his  goods  to  a  carrier,  who  biH'omcH 

failure  to  do  so.  Marks  or  labels  on  the  packages  delivered  will  uot  supply 
the  omission  of  such  instructions  from  the  accompanying  shipping  bills, 
where  they  are  shown  not  to  have  come  to  the  actual  knowledge  of  the  next 
succeeding  caxrier,  or  his  agent,  charged  with  the  duty  of  receiving  and  for- 
warding such  bills.  Little  Miami  R.  Co.  v.  Washburn,  22  Ohio  St.  321;  Dana 
V  Railroad  CJo.,  50  How.  Prac.  428.  A  carrier  who  acts  as  the  forwarding 
agent  of  the  owner  of  goods,  in  giving  directions,  by  way  bills  or  otherwlae, 
to  the  successive  lines  of  tran.sportation  over  which  they  are  to  bo  carried, 
beyond  the  termination  of  his  own  route,  is  responsible,  as  such  forwarding 
agent,  only  for  want  of  reasonable  diligence  and  care.  Northern  R.  Co.  v. 
Fitchburg  R.  Co.,  6  Allen,  254. 

6S9  Wehniann  v.  Railway  Co.,  58  Minn.  22,  59  N.  W.  546.  Notifying  second 
c-arrier  to  take  goods,  which  he  does  uot  do,  is  not  a  discharge.  (.Joold  v. 
Chapin,  20  N.  Y.  259.  If  carrier  of  freight  to  be  transferred  to  another  car- 
rier merely  stores  it  in  warehouse  of  its  own,  whence  the  other  Is  In  habit  of 
taking  it  at  its  convenience,  and  freight,  while  so  stored,  is  destroyed,  first  car- 
rier is  liable  for  its  value.  Condon  v.  Marquette,  H.  &  O.  R.  Co.,  55  Mich. 
218,  21  N.  W.  321.  S.  P.  Lawrence  v.  liuihoad  Co..  l.j  .Miun.  :'AK)  ^CiL  313^ 
Wood  V.  Railway  Co.,  27  Wis.  541;  Conkey  v.  Railway  Co.,  31  Wis.  019.  If 
a  carrier  is  ready  to  deliver  goods  to  succeeding  carrier,  yet  it  is  liable  as 
common  carrier  for  a  reasonable  time,  until,  accurdiug  to  usual  course  of  busi- 
ness, the  vessel  of  the  succeeding  carrier  can  arrive  to  taice  the  goods.  Mills  v. 
Railroad  Co.,  45  N.  Y.  G22.  Compare  Barter  v.  Wheeler,  49  N.  II.  9.  Taking  of 
part  of  a  lot  of  goods  by  a  railroad  company  from  a  steaml)oat  cv)mpany.  and 
fact  that  rest  were  pointed  out  and  ready  to  be  taken  from  the  boat,  does  uot 
necessarily  constitute  constructive  delivery  of  the  whole.  Uass  v.  New  York. 
P.  &  B.  R.  Co.,  99  Mass.  220.  Carrier  is  not  discharged  of  his  liability  where 
he  receives  goods  for  transportation  to  point  beyond  end  of  his  route,  and 
there  are  public  means  of  transportation  from  there  to  place  of  destination,  b;. 
delivering  them  to  mere  wharfinger  at  end  of  his  route,  in  absence  of  estab 
lished  usage  to  that  efl:ect,  but  he  must  deliver  them  to  some  proper  carrier 
to  be  taken  further.  But,  when  there  are  no  public  means  of  further  traj.s 
portation,  such  point  must  be  regarded  as  place  of  destination,  and  he  may 
properly  deliver  to  warehouseman  or  wharfinger.  Hermann  v.  Gu«Klrkl).  21 
Wis.  543. 

•  90  Conkey  v.  Railroad  Co.,  31  Wis.  619;    Barter  v.  Wheeler,  49  N.   U.  0; 
Railroad  Co.  v.  Manufacturing  Co.,  10  Wall.  318;    In  re  Petereen.  21  Fed.  886; 

LAW  BAILM. — 30 


466  CARRIERS    OF    GOODS.  [Ch.   7 

insurer  for  their  safe  transportation;  and  if  the  operations  of  one 
carrier  cover  a  part  only  of  the  line  of  transit,  and  another  is  to 
receive  the  goods  from  him,  the  shipper  has  a  right  to  understand 
that  the  liability  of  an  insurer  is  upon  some  one  during  the  whole 
period.  The  duty  of  the  one  is  not  discharged  until  it  has  been 
imposed  upon  the  succeeding  carrier,  and  this  is  not  done  until 
there  is  delivery  of  the  goods,  or  at  least  such  a  notification  to 
the  succeeding  carrier  as,  according  to  the  course  of  the  business, 
is  equivalent  to  a  tender  of  delivery.  There  is  nothing  in  this 
which  is  burdensome  to  the  carrier,  for  this  is  the  customary  meth- 
od in  which  the  business  is  done,  and  the  rule  only  requires  that 
the  customary  method  shall  be  pursued,  without  unreasonable  de- 
lay or  negligence.^^^  The  owner  loses  sight  of  his  goods  when  he 
delivers  them  to  the  first  carrier,  and  has  no  means  of  learning 
their  whereabouts  till  he  or  the  consignee  is  informed  of  their  ar- 
rival at  the  place  of  destination.  At  each  successive  point  of  trans- 
fer from  one  carrier  to  another,  they  are  liable  to  be  placed  in  ware- 
houses, there,  perhaps,  to  be  delayed  by  the  accumulation  of 
freight,  or  other  causes,  and  exposed  to  loss  by  fire  or  theft,  with- 

If  the  carrier  to  whom  the  shipper  has  directed  the  goods  to  be  delivered  re- 
fuses to  receive  them  for  transportation,  the  first  carrier  must  notify  the  con- 
signor, and,  by  so  doing,  becomes  liable  only  as  warehouseman.  Without  in- 
structions from  the  consignor,  there  is  no  right  to  forward  the  goods  by  an- 
other route.  Johnson  v.  Railroad  Co.,  33  N.  Y.  610;  Rawson  v.  Holland,  59 
N.  Y.  611;  Nutting  v.  Railroad  Co.,  1  Gray,  502;  Louisvdle  &  N.  R.  Co.  v. 
Campbell,  7  Heisk.  (Tenn.)  253;  Lesinsky  v.  Dispatch  Co.,  10  Mo.  App.  134; 
Railroad  Co.  v.  Manufacturing  Co.,  IG  Wall.  318;  In  re  Petersen,  21  Fed.  885; 
Demiug  v.  Railroad  Co.,  Id.  25.  But,  in  Regan  v.  Railway,  61  N.  H.  579,  where 
perishable  goods  were  shipped,  and  the  connecting  carrier  designated  was 
unable  to  receive  them,  it  was  held  that  the  first  carrier  exercised  reason- 
able care  by  forwarding  the  goods  over  another  route.  It  may  be  provided, 
by  agreement  or  custom  between  connecting  carriers,  that  a  constructive  de- 
livery shall  terminate  the  first  carrier's  liability,  without  an  actual  change  of 
possession.  See  McDonald  v.  Railroad  Corp.,  34  N.  Y.  497;  Condon  v.  Railroad 
Co.,  55  Mich.  218,  21  N.  W.  321;  Converse  v.  Transportation  Co.,  33  Conn. 
IGG;  Pratt  v.  Railway  Co.,  ^  U.  S.  43.  The  owner  mi-y  take  advantage  of 
such  a  usage,  and  recover  against  the  carrier  to  whom  the  goods  have  been 
constructively  delivered.     Aetna  Ins.  Co.  v.  Wheeler.  49  N.  Y.  610. 

6  91  Condon  v.  Railroad,  55  Mich.  218,  21  N.  W.  321.    And  see  Louisville, 
St.  L.  &  T.  R.  Co.  V.  Bourne  (Ky.)  29  S.  W.  975. 


§    97]  TERMINATION DELIVERY    TO    CONNECTINQ    CARRIKB.  4 07 

out  fault  on  the  part  of  the  carrier  or  his  agents.  Sii|KT.idd(>d  to 
these  risks  are  the  dangers  of  loss  by  collusion, — quite  hb  iuiminent 
while  the  goods  are  thus  stored  at  some  point  unknown  to  the 
owner  as  while  they  are  in  actual  transit.  The  storing  under  such 
circumstances  is  held  to  be  a  mere  accessory  to  the  transporta- 
tion."" 

When  lAablefor  Through  Transportation — The  Prevailing  Rule. 

It  is  the  duty  of  a  common  carrier  to  receive  and  transport  goods 
over  its  own  line, — a  duty  which  it  must  perform,  or  respond  in 
damages.""'  But  it  is  not  its  duty  to  transi)ort  such  goods  over 
the  line  of  any  other  carriers,  or  to  contract  for  such  transp(»rta- 
tion,  and  it  cannot  be  compelled  to  assume  sucli  an  obligation.  Its 
entire  common-law  duty  is  limited  to  its  own  line.  It  owes  noth- 
ing to  the  public  beyond  that.""*  IJut  a  carrier  may  assume  an 
additional  obligation  of  this  kind,  and  become  an  insurer  of  the 
goods  throughout  the  whole  course  of  the  transportation ;  that  is, 
the  first  carrier  may  make  its  liability  as  a  common  carrier  con- 
tinue until  the  goods  have  reached  their  ultimate  destination.  This 
is  done  by  contracting  to  carry  the  goods  to  their  destination.  Hv 
so  doing  the  initial  carrier  makesthe  succeeding  carriers  its  agents. 
and  becomes  responsible  for  their  defaults.  This  liability  for 
through  transportation  may,  of  course,  be  assumed  by  an  express 
contract;""^  but  such  an  agreement  will  not  be  inferred  from 
doubtful  expressions  or  loose  language,  but  only  from  dear  and 

C92  McDonald  v.  Railroad  Corp.,  34  N.  Y.  407;  Fenner  v.  Uailroad  Co.,  44 
\.  Y.  505. 

6»8  See  ante,  p.  321. 

6»4  Berg  V.  Railroad  Co.,  30  Kan.  561,  2  Pac.  6.39. 

69  5  Burtls  V.  Railroad  Co.,  24  N.  Y.  269,  272;  Root  v.  Railroad  Co..  4.'")  N.  Y. 
524,  532;  Quimby  v.  Vanderbilt,  17  N.  Y.  300;  Hill  Mauufg  Co.  v.  Boston  &  L.  K. 
Corp.,  104  Mass.  122;  Gray  v.  .Tackson,  51  N.  H.  0;  PbiUips  v.  Railroad  Co.,  78  N. 
C.  294;  Railroad  Co.  v.  Pratt,  22  Wall.  123;  Woodward  v.  Railroad  Co.,  1  Bl.-s. 
403,  Fed.  Cas.  No.  18,006;  Benett  v.  Steamboat  Co.,  0  C.  B.  775.  Bnt  soc  <lict!i. 
contra.  Hood  v.  Railroad  Co.,  22  Conn.  1;  Converse  v.  Tran.sportation  O...  33 
Conn.  166;  Naugatuek  R.  Co.  v.  Waterbury  Button  Co..  24  Cx)nn.  \rS:  Elmore 
V.  Railroad  Co.,  23  Conn.  457.  As  to  liability  for  delay,  see  International  & 
G.  N.  R.  Co.  V.  Anderson,  3  Tex.  Civ.  App.  8,  21  S.  W.  691.  And  of.  Johnson 
V.  Railway  Co.,  90  Ga.  810.  17  S.  E.  121.  Such  a  contnict.  by  a  rnllrond  com- 
pany or  other  corporation  doing  business  as  a  common  carrier.  Is  not  ultra 


463  CARRIERS    OF   GOODS.  [Ch.  7 

satisfactory  evidence.*"*'  In  the  absence  of  snch  an  express  con- 
tract, in  the  greater  nnmber  of  our  states,  a  carrier  does  not  be- 
come liable  for  the  through  transportation  of  goods  merely  by  ac- 
cepting them,  directed  to  a  point  beyond  its  own  line;  that  is,  the 
carrier  is  prima  facie  liable  only  to  the  end  of  its  line.®'^ 
Same— The  English  Rule.  ^^  ^".T.'p  CAyt/t..^:^  ^^a^  x^  «aX/w*.    v» 

The  rule  just  stated  is  ncft,  however,  the  law  in  England.  The 
leading  case  supporting  the  English  rule  is  Muschamp  v.  Lancaster 

vires.  Swift  v.  Steamship  Co.,  106  N.  Y.  206,  12  N.  B.  583;  Buffett  v.  Rail- 
road Co.,  40  N.  Y.  168;  Bissell  v.  RaUroad  Ck).,  22  N.  Y.  258;  Hill  Manuf  g  Co. 
v.  Boston  &  L.  R.  Corp.,  104  Mass.  122;  Baltimore  &  Philadelphia  Steamboat  Co. 
V.  Brown,  54  Pa.  St.  77;  Western  &  A.  R.  Co.  v.  McElwee,  6  Heisk.  (Tenn.) 
208,  219;  Noyes  v.  Railroad  Co.,  27  Vt.  110;  Railroad  Co.  v.  Pratt,  22  Wall. 
123. 

096  Myrick  v.  Raih*oad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425. 

66T  Elmore  v.  Railroad  Co.,  23  Conn.  457,  470;  Hood  v.  Railroad  Co.,  22 
Conn.  ,502;  Naugatuck  R.  Co.  v.  Waterbury  Button  Co.,  24  Conn  468;  Con- 
verse V.  Transportation  Co.,  33  Conn.  166;  Savannah,  F.  &  W.  Ry.  Co.  v.  Harris, 
26  Fla.  148,  7  South.  544;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Morton,  61  Ind.  539; 
Hill  V.  Railway  Co.,  60  Iowa,  196,  14  N.  W.  249;  Perkins  v.  Railroad  Co.,  47 
Me.  573;  Skinner  v.  Hall,  60  Me.  477;  Inhabitants  of  Plantation  No.  4  v. 
Hall,  61  Me.  517;  Baltimore  &  O.  R.  Co.  v.  Schumacher,  29  Md.  168,  176; 
Nutting  V.  Railroad  Co.,  1  Gray,  502;  Darling  v.  Railroad  Corp.,  11  Allen, 
295;  Burroughs  v.  Railroad  Co.,  100  Mass.  26;  Lowell  Wire  Fence  Co.  v. 
Sargent,  8  Allen,  189;  Pendergast  v.  Express  Co.,  101  Mass.  120;  Pratt  v.  Rail- 
road Co.,  102  Mass.  557;  Crawford  v.  Railroad  Ass'n,  51  Miss.  222;  McMillan  v. 
Railroad  Co.,  16  Mich.  79;  Detroit  &  B.  C.  R.  Co.  v.  McKenzie,  43  Mich.  600,  .j  N. 
W.  1031;  Rickerson  Roller-Mill  Co.  v.  Grand  Rapids  &  I.  R.  Co.,  07  MJch.  110. 
34  N.  W.  2G9;  Irish  v.  Railway  Co.,  19  Minn.  376  (Gil.  323);  Lawrence  v.  Rail- 
road Co.,  15  Minn.  390  (Gil.  313);  Grover  &  Baker  Sewing  Mach.  Co.  v.  Mis- 
souri Pac.  Ry.  Co.,  70  Mo.  672;  Van  Santvoord  v.  St.  John,  6  Hill,  157;  Lamb 
V.  Transportation  Co.,  46  N.  Y.  271;  Condict  v.  Railway  Co.,  54  N.  Y.  500; 
Puiwson  V.  Holland,  59  N.  Y.  611;  Reed  v.  Express  Co.,  48  N.  Y.  462;  Phillips 
V.  Railroad  Co.,  78  N.  C.  294;  Lindley  v.  Railroad,  88  N.  0.  547;  Knott  v. 
Railroad  Co.,  98  N.  C.  73,  3  S.  W.  735;  Camden  &  A.  R.  Co.  v.  Forsyth,  61  Pa. 
St  81;  American  Exp.  Co.  v.  Second  Nat.  Bank,  69  Pa.  St.  394;  Pennsyl- 
vania Cent.  R.  Co.  v.  Schwarzenberger,  45  Pa.  St.  408;  Clyde  v.  Hubbard,  88 
Pa.  St.  358;  Knight  v.  Railroad  Co.,  13  R.  L  572;  Harris  v.  Railway,  15  R.  I. 
371,  5  AtL  305;  Piedmont  Manuf 'g  Co.  v.  Columbia  &  G.  R.  Co.,  19  S.  C.  353 
(but  see  Kyle  v.  Railroad  Co.,  10  Rich  [S.  C]  382);  McConnell  v.  Railroad  Co., 
86  Va.  248,  9  S.  C.  1006;  Myrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425; 
Stewart  v.  Railroad  Co.,  1  McCrai-y,  312,  3  P'ed.  768;    Railroad  Co.  v.  Manu- 


§    97]  TERMINATION DELIVERY   TO    OONNECTIHO    CARRIEB.  469 

&  P.  J.  Ry.  Co.,"'  in  which  it  was  held  that  when  a  railway  com- 
pany tate  into  their  care  a  parcel  directed  to  a  partirular  place, 
and  do  not,  by  positive  agreement,  limit  their  responsihility  to  a 
part  only  of  the  distance,  that  is  prima  facie  evidence  of  an  under- 
taking to  carry  the  parcel  to  the  place  to  which  if  is  directed,  although 
that  place  be  beyond  the  limits  within  which  the  company,  in  gen- 
eral, profess  to  carry  on  their  business  of  carriers/*'  This  rule 
has  been  followed  in  some  American  cases,^°"  and  the  Missouri  ^'*' 
and  South  Carolina  ^°^  statutes  lay  down  the  same  rule.  The  Krig- 
lish  courts  go  so  far  as  to  hold  that  only  the  first  carrier  can  be 
sued  for  a  loss  occurring  on  any  of  the  lines.^*'  This  has  been  fol 
lowed  in  none  of  our  courts,^"*  except  in  Georgia,^"'  and  is  now 

facturing  Co.,  16  Wall.  318;  Railroad  Co.  t.  Pi-att,  22  Wall.  123,  Insurance  Co. 
T.  Railroad  Co.,  104  U.  S.  146. 

88  8  8  Mees.  &  W.  421. 

609  Watson  V.  Railway  Co.,  3  Eng.  Law  &  Eq.  497;  Mytton  v.  Hallway  Co.. 
28  Law  J.  Esch.  38.3;  Coxon  v.  Railway  Co.,  5  Hurl.  &  N.  274;  Bristol  &  K. 
Ry.  Co.  V.  Collins,  Id.  0G9,  29  L.  J.  Exch.  41. 

700  Mobile  &  G.  R.  Co.  v.  Copeland,  63  Ala.  219;  Louisville  &  .V.  R.  Co.  v 
Meyer,  78  Ala.  597;  Falvey  v.  Railroad  Co.,  76  Ga.  597;  Rome  IL  Co.  v 
Sullivan,  25  Ga.  228;  Mosher  v.  Express  Co.,  38  Ga.  37;  Southern  Exp.  Co. 
V.  Sbea,  Id.  519;  Cohen  v.  Express  Co.,  45  Ga,  148;  Illinois  Cent.  R.  Co.  v. 
Copeland,  24  111.  332;  Illinois  Cent.  R.  Co.  v.  Johnson.  34  111.  389;  Illinois 
Cent  R.  Co.  v.  Frankenberg,  54  111.  88;  Chicago  &  N.  W.  Ry.  Co.  v.  Peoplf. 
56  111.  365;  United  States  Exp.  Co.  v.  Haines,  67  IlL  137;  Adams  Exp.  Co. 
V.  Wilson,  81  lU.  339;  Erie  Ry.  Co.  v.  Wilcox,  84  111.  239;  Angle  v.  Rail- 
road Co.,  9  Iowa,  487;  Mulligan  v.  Railway  Co.,  36  Iowa,  181;  Cincinnati. 
H.  &  D.  R.  Co.  V.  Spratt,  2  Duv.  (Ky.)  4;  Nashua  Lock  Co.  v.  Worcestor 
&  N.  R.  Co.,  48  N.  H.  339;  Western  &  A.  R.  Co.  v.  McElwee,  6  Ucl.sk. 
(Tenn.)  208;  East  Tennessee  &  V.  R.  Co.  v.  Rogers,  Id.  143;  Ijouisvllle 
&  N.  R.  Co.  V.  Campbell,  7  Heisk.  (Tenu.)  253;  Carter  v.  Peck,  4  Sneed  (Tenn.i 
203;  East  Tennessee  &  G.  R.  Co.  v.  Nelson.  1  Cold.  (Tenn.)  272. 

701  Rev.  St.  1SS9,  §  944. 

702  Gen.  St  §  1513;   Rev.  St  18.93,  §  1720. 

703  ColliBS  V.  Railway  Co.,  11  Exch.  790;  Coxon  v.  Railway  Co.,  5  Hiirl.  ft 
N.  274;    Mytton  v.  Railway  Co.,  4  HurL  &  N.  615. 

7  04  Barter  v.  Wheeler,  49  N.  H.  9;  Chicago  &  N.  W.  IL  Co.  v.  Northern 
Line  Packet  Co.,  70  lU.  217;  Chesapeake  &  O.  R.  Co.  v.  Rjidboume.  52  111. 
App.  203;  Southern  Exp.  Co.  v.  Hess.  53  Ala.  19.  Cf.  Anchor  Line  v.  Dalcr, 
iiS  HL  369. 

7 OB  Southern  Eip.  Co.  v.  Shea,  38  Ga,  519. 


470  CARRIERS    OF    GOODS.  [Ch.  7 

otherwise  in  that  state,  by  statute.'" °  Even  in  the  states  follow- 
ing the  English  rule  a  carrier  may  avoid  liability  beyond  its  owi? 
line  by  contract.''"'  Such  a  contract  is  not  void  on  the  ground 
that  the  carrier  cannot  contract  against  its  own  negligence.  It  is 
not  a  case  in  which  a  common  carrier  is  attempting  to  limit  its 
common-law  liability  by  contract.'"'  Even  under  the  Missouri 
statute,  the  carrier  may  contract  against  liability  beyond  its  own 
'ine.'°®  In  any  case,  however,  the  contract  must  show  expressly 
that  the  first  carrier's  undertaking  is  to  carry  over  its  own  line, 
and  to  deliver  at  its  terminus  to  the  next  carrier,'^"  otherwise  a 
clause  attempting  to  restrict  liability  to  the  company  in  whose 
charge  the  goods  are  at  the  time  of  loss  or  injury  will  be  inopera- 
tive.'^^ 

Same — Authority  of  Agents  to  Make  Through  Contracts. 

The  general  freight  agent  of  a  railroad  company  has  power  to 
bind  the  company  by  a  contract  f«^r  tranHpnr^atinn  to  pointsbe- 
yond  its  own  line;  '^'  but  a  station  agent  has  no  such  power,  and 
such  a  c^trtract  entered  into  by  him  is  void,  unless  the  authority 


7  06  Code,  §  2084;  Western  &  A.  R.  Co.  v.  Exposition  Cotton  MIUs,  81  Ga. 
522. 

•707  Berg  v.  Railroad  Co.,  30  Kan.  06I,  2  Pac.  639;  Jones  v.  Railroad  Co., 
89  Ala.  376,  8  South.  61;  Texas  &  P.  Ry.  Co.  v.  Adams,  78  Tex.  372,  14  S.  W. 
666;  Tolman  v.  Abbot,  78  Wis.  192,  47  N.  W.  264;  Mulligan  v.  Railway  Co., 
36  Iowa,  181;  Taylor  v.  Railroad  Co.,  32  Ark.  393;  Aldrige  v.  Railway  Co.. 
15  C.  B.  (N.  S.)  582;  Fowles  v.  Railway  Co.,  7  Exch.  699;  Kent  v.  RaUway 
Co.,  L.  R.  10  Q.  B.  1. 

7  08  See  ante,  p.  413. 

TOO  Dimmitt  v.  Railroad  Co.,  103  Mo.  433,  15  S.  W.  761.  Contra,  Baker 
V.  Railway  Co.,  34  Mo.  App.  9S. 

710  Pendergast  v.  Express  Co.,  101  Mass.  120;  American  Exp.  Co.  v.  Sec- 
ond Nat.  Bank,  69  Pa.  St  394;  United  States  Exp.  Co.  v.  Rush,  24  Ind. 
403;  Inhabitants  of  Plantation  No.  4  v.  Hall,  61  Me.  517;  Rickerson  Roller 
Mill  Co.  V.  Grand  Rapids  &  I.  R.  Co.,  67  Mich.  110,  34  N.  W.  209;  Detroit  & 
B.  C.  Ry.  Co.  V.  McKenzie,  43  Mich.  009,  5  N.  W.  1031;  Myrick  v.  Michigan 
Cent.  R.  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425. 

711  Milne  v.  Douglass,  13  Fed.  37;  Bank  of  Kentucky  v.  Adams  Exp.  Co., 
03  U.  S.  174;  Railroad  Co.  v.  Pratt.  22  Wall.  123;  Gulf,  C.  &  S.  F.  R.  Co. 
V.  Golding,  23  Am.  &  Eug.  Ry.  Cas.  732;  Cincinnati.  H.  &  D.  R.  Co.  v,  Pon- 
tius, 19  Ohio  St.  221;    Condict  v.  Railway  Co.,  54  N.  Y.  500. 

712  Grover  &  Baker  Sewing  Mach.  Co.  v.  Missouri  Pac.  R,  Co.,  70  Mo.  &72; 
White  V.  Railroad  Co.,  19  Mo.  App.  400. 


§    97]  TERMINATION DELIVERY    TO    CONNECTINQ    CAKRIKR.  171 

has  been  expressly  conferred  by  the  proper  superior  ofliccr,  or  tla-re 
have  been  previous  dealings  from  which  the  aullioiity  may  be  rea- 
sonably inferred,  or  the  company  has  held  itself  out  as  a  common 
carrier  to  snch  points."*  Thus,  where  other  similar  contracts  had 
been  made  by  the  station  agent,  and  such  contracts  had  been  rec- 
ognized an.d  carried  out  by  defendant,  this  was  said  to  be  a  course 
of  dealing  between  the  shipper  and  the  carrier's  agent  from  which 
the  authority  of  the  agent  to  make  the  contract  might  be  in- 
ferred.^^*  But  all  those  states  which  recognize  the  "Kngli.sh  rule" 
would  probably  hold  that  a  local  agent  has  power  to  make  a  bind 
ing  contract  for  through  transportation.''^' 

Same — Implied  Contract. 

The  contract  which  will  make  a  carrier  liable  for  through  trans- 
portation need  not  contain  express  words  to  that  effect.  The  as- 
sumption of  liability  for  losses  beyond  the  carrier's  line  may  be 
implied  from  the  circumstances  of  the  case,  and  special  words 
used  in  the  receipt  or  bill  of  lading.^^*  In  the  states  following  the 
rule  which  is  supported  by  the  weight  of  authority, — that  is,  that 
the  carrier  is  prima  facie  liable  only  for  losses  on  its  own  line, — 
the  following  circumstances  are  evidence  of  a  through  contrart, 
but  not  conclusive  :^^^  The  use  of  the  words  "to  forward,"  or  "to 
be  forwarded,"  in  the  carrier's  receipt;  ^^'    a  receipt  di-  bill  of  lad 

T13  Burroughs  v.  Railroad  Co.,  100  Mass.  20;  Turner  v.  Itallroad  Co..  20 
Mo.  App.  032;  Grovcr  &  Baker  Sewing  Mach.  Co.  v.  Missouri  Fac.  it.  Co.. 
70  Mo.  072. 

714  White  V.  Missouri  Pac.  R.  Co.,  19  Mo.  App.  400. 

716  Hansen  v.  Railroad  Co.,  73  Wis.  340,  41  N.  W.  529.  And  see  Watson 
V.  Railway  Co.,  15  Jur.  448;  Scothorn  v.  Railway  Co.,  8  Exch.  311;  Brisiul 
v"t  E.  Ry.  Co.  V.  Collins,  7  H.  L.  Cas.  194. 

716  Berg  V.  Steamship  Co.,  5  Daly,  394;  Robinson  v.  Transportation  Co..  45 
Iowa,  470;  Piedmont  Manuf'g  Co.  v.  Columbia  &  G.  R.  Co..  19  S.  C.  353; 
Illinois  Cent.  R.  Co.  v.  Kerr,  08  Miss.  14,  8  South.  330;  Candee  v.  Uallroad 
Co^  21  Wis.  582;  International  &  G.  N.  Ry.  Co.  v.  Tisdaie.  74  Tex.  8,  11  S. 
W.  900;  Railroad  Co.  v.  Androscoggin  Mills,  22  Wall.  .v.M.  Ami  si-.-  Cam- 
den &  A.  R.  Co.  V.  Forsyth,  01  Pa.  St.  81. 

717  Root  V.  Railroad  Co.,  45  N.  Y.  524,  532;  Hill  .Mauiil  g  Co.  v.  r.,,n..ii  &  I.. 
R.  Corp.,  104  Mass.  122;  Camden  &  A.  R.  Co.  v.  Forsyth.  Gl  Pa.  St.  81;  Piedmont 
Manuf'g  Co.  v.  Columbia  &  G.  R.  Co.,  19  S.  C.  353;  Woodward  v.  Uallroad 
Co.,  1  Biss.  403,  Fed.  Cas.  No.  18,000. 

718  Reed  V.  Express  Co.,  48  N.  Y.  402;    Mercantile  MuL  Ins.  Co.  v.  Chase.  1 


472  CARRIERS    OF    GOODS.  [Ch.   7 

ing  which  purports  to  be  a  through  coutract;^^^  the  giving  of  a 
through  rate;  '^^°  the  prepayment  of  freight  for  the  whole  trans- 
portation; ■'^^  the  carrier's  holding  out  to  carry  over  the  vyhole  dis- 
tance; ^^^  or  an  agreement  that  the  goods  be  carried  through  in  a 
particular  car.'^^'  In  those  states  which  follow  the  English  rule, 
these  circumstances  are  conclusive  of  a  through  contract.''-* 

E.  D.  Smith,  115;  Wilcox  v.  Parmelee,  3  Sandf.  610;  Schroeder  v.  Railroad 
Co.,  5  Duer,  55;  Buckland  v.  Express  Ck).,  97  Mass.  124;  Nashua  Lock  Co. 
V.  Worcester  &  N.  K.  Co.,  48  N.  H.  339;  Cutts  v.  Brainerd,  42  Vt  566;  East 
Tennessee  &  V.  R.  Co.  v.  Rogers,  6  Heisk.  (Tenn.)  143;  St,  Louis,  K.  C.  &  N. 
Ry.  Co.  V.  Piper,  13  Kan.  376. 

719  Helliwell  v.  Railway  Co.,  7  Fed.  68;  Richardson  v.  The  Charles  P. 
Chouteau,  37  Fed.  532;  Harp  v.  The  Grand  Era,  1  Woods,  184,  Fed.  Cas.  No. 
6,084;  My  rick  v.  Railroad  Co.,  9  Biss.  44,  Fed.  Cas.  No.  10,001;  Houston  & 
T.  C.  R,  Co.  V.  Park,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  332;  Texas  &  P. 
R.  Co.  V.  Parrish,  Id.  §  942;  Loomis  v.  Railway  Co.,  17  Mo.  App.  340;  Moore 
V.  Henry,  18  Mo.  App.  35;  Wiggins  Ferry  Co.  v.  Chicago  &  A.  R.  Co.,  73  Mo. 
389. 

720  Weed  v.  Railroad  Co.,  19  Wend.  (N.  Y.)  534;  Berg  v.  Steamship  Co.,  5 
Daly  (N.  Y.)  394;  Clyde  v.  Hubbard,  88  Pa,  St.  358;  Candee  v.  Railroad  Co., 
21  Wis.  589;  Aiken  v.  Railway  Co.,  68  Iowa,  363;  Railroad  Co.  v.  Androscog- 
gin Mills,  22  WalL  594.  But  see  McCarthy  v.  Railroad  Co.,  9  Mo.  App.  159; 
East  Tennessee  &  G.  R.  Co.  v.  Montgomery,  44  Ga.  278. 

7  21  Berg  V.  Steamship  Co.,  5  Daly  (N.  Y.)  394;  Candee  v.  Railroad  Co.,  21 
Wis.  589;  Weed  v.  Railroad  Co.,  19  Wend.  (N,  Y.)  534;  Piedmont  Manuf'g 
Co.  V.  Columbia  &  G.  B.  Co.,  19  S.  C.  353;  Illinois  Cent  R.  Co.  v.  Kerr,  68 
Miss.  14,  8  South.  330. 

T22  Lawson,  Bailm.  §  103;  Root  v.  Railroad  Co.,  45  N.  Y.  524;  Collender  v. 
Dinsmore,  55  N.  Y.  200;  Toledo,  P.  &  W.  Ry.  Co.  v.  Merriman,  52  111.  123; 
Hill  Manuf'g  Co.  v.  Boston  &  L.  R.  Corp.,  104  Mass.  122;  Robinson  v.  Mer- 
chants' Dispatch  Transp.  Co.,  45  Iowa.  470;  Harris  v.  Railroad  Co.  (R.  I.)  16 
AU.  512;  St.  John  v.  Express  Co.,  1  Woods,  612,  Fed.  Cas.  No.  12,228; 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Wolcott  (Ind.  Sup.)  39  N.  E.  451. 

7  23  International  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  Tex.  8,  11  S.  W.  900. 

724  Hutch.  Carr.  (2d  Ed.)  §  152;  Ohio  R.  Co.  v.  Emrich,  24  Dl.  App.  245; 
Wabash,  St  L.  &  P.  Ry.  Co.  v.  Jaggerman,  115  111.  407,  4  N.  E.  641;  Illinois 
Cent  R.  Co.  v.  Copeland,  24  111.  332;  Illinois  Cent  R,  Co.  v.  Johnson,  34  111. 
389;  Illinois  Cent  R.  Co.  v.  Frankenberg,  54  111.  88;  Central  Railroad  & 
Banking  Co.  v.  Georgia  Fruit  &  Vegetable  Exch.,  91  Ga,  389,  17  S.  E.  904; 
AdaiQS  Exp.  Co.  v.  WUson,  81  111.  339;  Weed  v.  Railroad  Co.,  19  Wend.  534; 
Hansen  v.  Railroad  Co.,  73  Wis.  346.  41  N.  W.  529;  Angle  v.  Railroad  Co.,  9 
Iowa,  487;  Mulligan  v.  Railway  Co.,  36  Iowa,  181;  Pereira  v.  Railroad  Co., 
6G  Cal.  92,  4  Pac.  988;  Halliday  v.  Railway  Co.,  74  Mo.  159;   Atlanta  &  W.  P. 


§    97]  TEKMINATION DELIVKJBY    TO    C»NNKCTINO    CAUttlliR.  47  I 

Same — Partnership  Ldability. 

If  two  or  more  conuecting  caiTiers  enter  into  a  partnership 
agreement  for  the  transportation  of  freight  or  baggage  over  a 
through  route,  each  partner  becomes  liable  for  the  defaults  of  the 
others.^*"*  The  result  is  the  same  as  to  third  persons  if  the  car 
riers  hold  themselves  out  as  partners,  though  they  are  not  such  in 
fact.  They  are  estopped  to  deny  the  partnership  as  to  unc  who 
has  intrusted  goods  to  their  care  in  reliance  on  such  reprcsenta- 
tion.^*'  In  order  that  connecting  carriers  may  be  bound  by  a 
contract  for  through  transportation  made  by  the  carrier  to  whom 
the  goods  are  first  delivered,  the  latter  must  have  authority,  by 
virtue  of  the  existence  of  a  partnership  between  itself  and  the 
other  lines  over  which  the  cattle  were  to  pass,  or  by  virtue  of  an 
agency  conferred  on  it  by  the  other  companies,  empowering  it  to 
make  a  contract  which  would  bind  them  jointly.  In  the  absence 
of  such  authority,  the  contract  is  simply  the  contract  of  the  com- 
pany that  makes  it,  by  which  it  is  bound  to  transport  the  goods 
on  its  own  line  as  far  as  that  extends,  and  beyond  that  to  furnish 
transportation  through  other  lines.' ''^  But,  in  the  absence  of  ex- 
press authority,  facts  may  appear  which  vdU  be  suOicient  to  show  a 
ratification  of  a  contract  so  made;   but  a  railway  company  cannot 

K.  Co.  v.  Texas  Grate  Co.,  81  Ga.  602,  9  S.  E.  GOO;  Baltimore  &  O.  R.  Co.  v. 
Campbell,  36  Ohio,  647;  Carter  v.  Peck,  4  Sneed  (Tenn.)  203;  Western  &  A. 
II.  Co.  V.  McElwee,  6  Heisli  (Teon.)  208;  East  Tennessee  &  V.  R.  Co.  v.  Ror- 
ers.  Id.  143;  Louisville  &  N.  R.  Co.  v.  Campbell,  7  Heisk.  (Tenn.)  253. 

725Ck)bb  V.  Abbot,  14  Pick.  289;  Briggs  v.  Vauderbilt,  19  Barb.  222.  2:J7; 
Hart  v.  Railroad  Co.,  8  N.  Y.  37;  Bostwick  v.  Champion,  11  Wend.  ri71.  ufflrm- 
ed  18  Wend.  175:  Montgomery  &  W.  P.  R.  Co.  v.  Moore.  51  Ala.  84;  Els- 
worth  V.  Tartt,  20  Ala.  T.VA:  Wcylaud  v.  KlUius.  Holt.  N.  I'.  22,.  1  .Starklc.  272; 
Fromont  t.  Coupland,  2  Bing.  170.  Though  a  railroad  company  or  other  cor- 
poration doing  business  as  a  carrier  may  have  no  power  to  form  such  a 
partnership,  it  Is  still  liable  to  third  persons  when  It  has  attL'niptt-d  t.)  do  bo 
and  has  held  itself  out  as  such.     Swift  ?.  Steamship  Co..  106  N.  Y.  200.  12  N. 

K  583;   Wylde  v.  Railroad  Co.,  53  N.  Y.  156;   Block  v.  Railroad  Co..  i:'*^  ^'- 

808,  IN.  E.  348;   Barter  v.  Wheeler,  49  N.  H.  90. 

T2«  Pattison  v.  Blanchard,  5  N.  Y.  186;  Bostwick  v.  Champion.  U  Weud. 
571,  affirmed  18  Wend.  175. 

7  27  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Baird.  75  Tex.  256,  12  S.  W.  530;  Ft.  Worth 
&  D.  C.  R.  Co.  y.  Williams,  77  Tex.  121,  13  S.  W.  637.  Cf.  Gnlf.  C.  &  S.  F. 
Ry.  Co.  V.  Clarke,  5  Tex.  Civ.  App.  547.  24  S.  W.  355. 


474 


CARRIERS    OF    GOODS.  [Ch.    7 


be  held  to  have  ratified  a  contract  from  the  fact  that  it  performed 
some  of  the  services  contemplated  by  it,  when  it  is  not  at  liberty, 
contract  or  no  contract,  to  refuse  to  render  the  service;  as  where, 
at  the  time  the  cars  in  which  goods  were,  were  received  from  the 
prior  carrier,  the  law  provided  that  "every  such  company  shall  for 
a  reasonable  compensation  draw  over  their  railroad,  without  delay, 
the  passengers,  merchandise,  and  cars  of  every  other  railroad  com- 
pany which  may  enter  and  connect  with  their  railroad."  ""' 

That  a  contract  for  through  transportation  over  the  connecting 
lines  of  several  railway  companies,  as  between  themselves  com- 
posing a  partnership,  or  holding  themselves  out  as  such,  is  binding 
on  all,  and  one  responsible  for  the  act  of  another,  results  from  the 
fact  that  the  contracting  company  has  power  so  to  bind  all.  It  is 
upon  the  same  ground,  when  no  partnership  exists,  that  several 
carriers  may  be  jointly  bound  by  a  contract  made  by  one  in  the 
exercise  of  an  agency  conferred  on  it  by  the  others."'  The  chief 
difficulty  in  these  cases  is  to  determine  what  arrangements  consti- 
tute partnerships. ^'°  Rothrock,  C.  J.,  in  an  Iowa  case,^^^  quotes 
with  approval  the  rule  laid  down  by  Mr.  Hutchinson,^ ^^  which  is 
"that  where  carriers  over  different  routes  have  associated  them- 
selves under  a  contract  for  a  division  of  the  profits  of  the  carriage 
in  certain  proportions,  or  of  the  receipts  from  it,  after  deducting 
any  of  the  expenses  of  the  business,  they  become  jointly  liable,  as 
partners,  to  third  persons,"^  but  that  where  the  agreement  is  that 

728  Ft.  Worth  &  D.  C.  R.  Co.  v.  Williams,  77  Tex  121,  13  S.  W.  637;  Ft. 
Worth  &  D.  C.  R.  Ck).  v.  Fuller,  3  Tex.  Civ.  App.  340,  22  S.  W.  1006. 

729  Wells,  Fargo  &  Co.  v.  Battle,  5  Tex.  Civ.  App.  532,  24  S.  W.  353;  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Williams,  4  Tex.  Civ.  App.  294,  23  S.  W.  626. 

T30  See  Wehmann  v.  Railway  Co.  (Minn.)  59  N.  W.  546. 

731  Peterson  v.  Railroad  Co.,  80  Iowa,  92,  45  N.  W.  573. 

T32  Hutch.  Carr.  (2d  Ed.)  §  169. 

7  33  Carter  v.  Peck,  4  Sneed  (Tenn.)  203;  Hart  v.  Railroad  Co.,  8  N.  Y.  37; 
Cincinnati,  H.  &  D.  R.  Co.  v.  Spratt,  2  Duv.  (Ky.)  4;  Block  v.  Railroad  Co.,  139 
Mass.  308,  1  N.  E.  348;  Hill  Manuf'g  Co.  v.  Boston  &  L.  R.  Corp.,  104  Mass.  122; 
Wyman  v.  Railroad  Co.,  4  Mo.  App.  35.  But  see  Elliott  v.  Railroad  Co.,  58 
Mo.  App.  80.  Where  the  owners  of  stage  lines  each  provided  their  own  car- 
riages and  horses,  employed  their  own  drivers,  and  paid  the  expenses  of  their 
separate  sections  of  the  route,  except  the  tolls  at  turnpike  gates,  and  the 
moneys  received  as  the  fare  of  passengers,  after  deducting  such  tolls,  were 
divided  among  the  occupants  of  the  several  sections,   in  proportion  to   the 


§    97]  TERMINATION DELIVERY    TO    CONNECTINQ    CARRIER,  175 

each  shall  bear  the  expenses  of  his  own  route,  and  of  the  transpor- 
tation upon  it,  and  that  the  gross  receipts  shall  be  divided  in  pro- 
portion to  distance  or  otherwise,  they  ai-e  partners  neither  inter  so 
nor  as  to  third  persons,  and  incur  no  joint  liability."  ''**  Connect  ; 
ing  carriers  may  be  liable,  when  no  partnership  exists  between 
them,  and  they  have  not  held  themselves  out  as  partners,  by  th-- 
employment  of  a  joint  agent;  ^*°  as  where  connecting  stage  lims 
employ  a  driver  for  the  whole  route.""*  And  it  has  been  held, 
where  two  express  companies  have  a  single  messenger  for  the  en- 
tire transit,  that  the  first  company  could  not  limit  its  liability  for 
losses  due  to  the  fault  of  such  messenger  to  its  own  Hue.* 

number  of  miles  of  the  route  run  by  each,  they  were  held  liable  as  partners. 
Bostwick  V.  Champion,  11  Wend,  571,  affirmed  18  Wend.  175.  But  the  fact 
that  the  connecting  carriers  transact  their  true  business  by  moans  of  a  Joint 
committee  or  a  common  agent  will  not  make  thciii  liable  as  such.  Straiten  v. 
Railroad  Co.,  2  E.  D.  Smith,  184;  Elsworth  v.  Taitt.  liG  Ala.  733;  Watkins  v. 
Railroad  Co.,  8  Mo.  App.  569.  An  agreement  to  share  pro  rata  losses  that 
cannot  be  located  does  not  make  the  connecting  carriers  partners.  Aigen  v. 
Railroad  Co.,  132  Mass.  423.  An  arrangement  between  a  dispatch  company  ol 
St.  Louis,  Mo.,  and  sundry  railroad  companies  whose  lines  terminated  at  .\ew 
York,  whereby  the  latter  separately  agreed  to  carrj  all  goods  for  the  trans- 
portation of  which  the  former  should  contract,  does  not  Involve  joint  liability 
upon  the  part  of  the  railroad  companies,  nor  make  them  partners  either  inter 
sese  or  as  to  third  persons.    Insurance  Co.  v.  Railroad  Co.,  104  U.  S.  140. 

7  34  Ellsworth  V.  Tartt,  26  Ala.  733;  Montgomery  &  W.  P.  R.  Co.  v.  Moore, 
51  Ala.  394;  Insurance  Co.  v.  Railroad  Co.,  lOi  U.  S.  14G;  Brlggs  v.  Vander- 
bUt,  19  Barb.  222;  Gass  v.  Railroad  Co.,  99  Mass.  220;  Converse  v.  Transporta- 
tion Co.,  33  Conn.  166.  Where  several  persons  were  engaged  in  running  a  line 
of  stages,  and,  by  the  agreement  between  them,  one  was  to  run  at  his  own 
expense  a  certain  portion  of  the  route,  and  the  others,  in  like  manner,  the 
residue,  each  being  authorized  to  receive  fare  from  passengers  over  the  whole 
or  any  part  of  the  route,  and  the  fare  so  received  to  be  divided  between  thciu 
in  proportion  to  the  distance  which  they  resptcUvely  transported  such  pas- 
sengers, held,  that  this  did  not  constitute  a  partnership  between  the  parties. 
Pattison  v.  Blanchard,  5  N.  Y.  186. 

735  Cobb  V.  Abbot,  14  Pick.  289;  Schutter  v.  Express  Co.,  6  Mo.  App.  316: 
Wilson  V.  Railroad  Co.,  21  Grat  (Va.)  654;  Carter  v.  Peck,  4  Suced  (Tenn.) 
203. 

T8  6  Cobb  V.  Abbot,  supra. 

•  Schutter  v.  Express  Co.,  5  Mo.  App.  316. 


476  CARRIERS    OF    GOODS.  [Cll.   7 

Presumption  and  Burden  of  Proof. 

When  goods  are  lost  or  injured  in  the  course  of  transportation 
over  connecting  lines,  the  consignor  has  no  direct  means  of  show- 
ing where  the  loss  occurred,  and  certain  presumptions  are  there- 
fore raised  in  his  favor.'^^^  The  plaintiff  in  such  an  action  must 
sho^^elivery  in j"ood  order  to  the  first  carrier,  an^Jondelivery  to 
the  consignee,  CHnBelivery  in  a  damaged  condition.^  ^^  If  the  action 
is  against  the  first  carrier,  it  may  be  shown  in  defense  that  the 
goods  were  delivered  to  the  next  carrier  in  the  same  condition  as 
when  they  were  received.^^*  In  an  action  against  the  last  carrier, 
if  it  is  shown  that  the  goods  were  delivered  to  the  first  carrier  in 
good  order,  this  condition,  in  the  absence  of  a  contrary  showing,^^^ 
will  be  presumed  to  continue  until  the  goods  come  into  the  posses- 
sion of  the  last  carrier,  and  that  the  injury  occurred  on  that  line  J*  ^ 
This  is  on  the  principle  that  things  once  proved  to  have  existed  in  a 
certain  condition  are  presumed  to  have  continued  in  that  condition 
until  the  contrary  is  established  by  evidence.''*^  Thus,  where 
goods  in  a  box  are  shipped  over  connecting  lines,  and  when  deliv- 
ered to  the  consignee,  although  there  is  no  external  indication  of 
the  fact,  the  box  is  found  to  have  been  opened,  and  certain  goods 
abstracted  therefrom,  the  jury  may  presume,  in  the  absence  of  evi- 
dence to  the  contrary,  that  the  box  remained  unopened  until  it 

7  37  Laughlin  v.  Railroad  Co.,  28  Wis.  204, 

T38  Smith  V.  Railroad  Co.,  43  Barb.  225;  Brintnall  v.  Railroad  Co.,  32  Vt 
265;  Missouri  Pac.  R,  Co.  v.  Breeding  (Tex.  App.)  16  S.  W.  184;  Goodman 
v.  Navigation  Co.  (Or.)  28  Pac.  894,  898. 

739  Laughlin  v.  Railway  Co.,  28  Wis.  204;  Smith  v.  Railroad  Co.,  43  Barb. 
225;    Brintnall  v.  Railroad  Co.,  32  Vt.  265. 

T*o  Gulf,  C.  &  S.  F.  R.  Co.  V.  Malone  (Tex.  Civ.  App.)  25  S.  W.  1077. 

7*1  Laughlin  v.  Railroad  Co.,  28  Wis.  204;  Mobile  &  O.  R.  Co.  v.  Tupelo 
Furniture  Manuf'g  Co.,  67  Miss.  35,  7  South.  279;  Texas  &  P.  R.  Co.  v. 
Barnhart,  5  Tex.  Civ.  App.  601,  23  S.  W.  801;  Texas  &  P.  R.  Co.  v.  Adams, 
78  Tex.  372,  14  S.  W.  666;  Lin  v.  Railroad  Co.,  10  Mo.  App.  i25;  Central 
Railroad  &  Banking  Co.  v.  Bayer,  91  Ga,  115,  16  S.  E.  l./d;  International  &  G. 
N.  R.  Co.  V.  Folts,  22  S.  W.  541;  Faison  v.  Railway  Co.,  69  Miss.  569,  13 
South.  37.  But  see  International  &  G.  N.  R.  Co.  v.  Wolf,  3  Tex.  Civ.  App. 
383,  22  S.  W.  187;  AVesteru  Ry.  Co.  v.  Harwell,  97  Ala.  341,  11  South.  781. 

742  Smith  V,  Railroad  Co.,  43  Barb.  225;  Laughlin  v.  Railroad  Co.,  28  Wis. 
204;  Louisville  &  N.  R.  Co.  v.  Jones  (Ala.)  14  South.  114;  Forester  v.  Banking 
Co.,  92  Ga.  699,  19  S.  B.  81L 


§    98]  TERMINATION EXCUSES    PX)R    NONDKLIVEUY.  477 

came  into  the  possession  of  the  last  carrier,  and  that  the  losa  oc- 
curred through  its  fault'** 

98.  EXCUSES  FOR  NONDELIVERY— A  common  carrier 
is  excused  from,  delivering  the  goods  to  the  con- 
signee according  to  the  contract  of  carriage — 

(a)  When  they  are  demanded  by  one  having  paramount     /, 

title  (p.  479). 

(b)  When  the  consignor   has    stopped   them  in  transitu     2  . 

(p.  480). 

(c)  When  the  carrier  has  lost  them  through  an  excepted   3. 

peril  (p.  482). 

Delivery  to  Wrong  Person. 

A  carrier,  by  accepting  goods  for  transportation,  agrees  to  de 
liyer  them  according  to  the  terms  of  the  shipment,"*^  iind  for  a  de 
livery  to  any  other  person  than  the  consignee  the  carrier  is  liable 
as  for  a  conversion.^*®  The  reasons  for  this  rule  have  already 
been  discussed.^*'  If  the  carrier  has,  through  fraud  or  mistaki  .  /^J^ 
delivered  the  goods  to  the  wrong  person,  the  fact  that  there  hatr^ 
been  no  negligence  is  not  an  excuse.  The  can-ier  is  liable  as  an 
insurer,  and  the  question  of  diligence  is  immaterial.'*^     If  an  im- 

7  43  Laughlin  v.  Railway  Co.,  28  Wis.  204. 

T*4  Bailey  v.  Railroad  Co.,  49  N.  Y.  70. 

T45  McEntee  v.  Steamboat  Co ,  45  N.  Y.  34;  Price  v.  Railway  Co..  50  N.  T. 
213;  Powell  v.  Myers,  2G  Wend.  591;  Hawkins  v.  HuQinau.  U  ilill,  580; 
American  Merchants'  Union  Exp.  Co.  v.  Milk,  73  Dl.  224;  Samuel  v.  Che- 
ney, 135  Mass.  278;  Claflin  v.  Railroad  Co.,  7  Allen.  341;  Hall  v.  Railroad 
Corp ,  14  Allen,  443;  Wernwag  v.  Railroad  Co..  117  Pa.  SL  4G.  11  AU.  SUS; 
American  Exp.  Co.  v.  Stack,  29  Ind.  27;  American  Exp.  Co.  v.  Fletcher.  25 
Ind.  492;  Winslow  v.  Railroad  Co.,  42  Vt.  700;  Southern  Exp.  Co.  v.  Van 
Meter,  17  Ma.  783;  Gosling  v.  Higgins.  1  Camp.  451;  Lubbock  v.  Inglis.  1 
Starkie,  104;  Shearer  v.  Express  Co.,  43  111.  App.  G41.  Where  a  carrier,  on 
refusal  of  the  consignee  to  receive  goods,  delivers  them  to  one  who  repre- 
sents himself  to  be  the  agent  of  the  consignor,  without  notice  to  the  latter, 
and  the  agent  converts  the  goods  to  his  own  use,  the  carrier  is  liable  there- 
for.    American  Sugar-Refining  Co.  v.  McGhee  (Ga.)  21  S.  E.  3S3. 

748  Ante,  p.  32. 

747  McEntee  v.  Steamboat  Co.,  45  N.  Y.  34;  Price  v.  Railway  Co..  50  N.  T. 
213;    Guillanme  v.  Packet  Co.,  42  N.  Y.  212;   Viner  v.  Steamship  Co..  50  N.  Y. 


478  CARRIERS   OF    GOODS.  [Ch.  7 

\.  postor  indnces  the  consigpor  Xn  ship  yoods  to  a  fictitious  persoiL-Dr 

I  4^  fing>_tlie  carrier  is  liable  for  a  delivery  to  the  im^ostgr.^*^  So^ 
V,  too^the  carrier  is  liable  if  an  impostor  procures  ajgonsignment_pf 
goods  to  be  made  to  a  real  person,  and  then  secures  the  goods  fi;om 
the  carrier  by  representing  himself  to  be  that  person.^*"  If^  how- 
ever, the  consignor  intends  the  goods  for  the  person  to  whom  the 
carrier  delivers  them,  then  the  carrier  is  not  liable,  though  the  con- 
signor has  been  defrauded  by  a  mistake  on  his  part  as  to  the  iden- 
tity  of  the  consignee.  Thus,  if  A.,  fraudBpently  assuming  the 
name  of  a  reputable  merchant  in  a  certain  town,  buys  goods  of  an- 
other, the  property  in  the  goods  passes  to  A.,  and  the  seller  cannot 
maintain  an  action  against  a  common  carrier,  to  whom  the  car- 

23;  Qaflin  v.  Railroad  Co.,  7  Allen,  341;  Sbenk  v.  Propeller  Co.,  60  Pa.  St. 
109;  Pennsylvania  R.  Co.  v.  Stern,  119  Pa.  St  24,  12  Atl.  756;  Wemwag  v. 
Railroad  Cx).,  117  Pa.  St.  46,  11  Atl.  868;  American  Merchants'  Union  Exp. 
Co.  V.  Milk,  73  111.  224;  Ela  v.  Eix;press  Co.,  29  Wis.  611;  McCulloch  v.  Mc- 
Donald, 91  Ind.  240;  Merchants'  Dispatch  &  Transp.  Co.  v.  Merriam,  111 
Ind.  5,  11  N.  E.  954;  McEwen  v.  Railroad  Co.,  33  Ind.  3GS;  Howard  v.  Steam- 
boat Co.,  83  N.  C.  158;  Adams  v.  Blankenstein,  2  Cal.  413;  Hayes  v.  Wells, 
Pargo  &  Co.,  23  Cal.  185;  Southern  Exp.  Co.  v.  Crook,  44  Ala.  468.  A  carrier 
who  makes  a  mistake  in  delivery  of  goods  is  liable  in  damages  for  any 
diminution  in  value  between  the  date  of  miscarriage  and  the  time  of  their 
coming  into  the  hands  or  under  the  control  of  the  consignees.  Vincent  v. 
Rather,  31  Tex.  77.  Existence  of  local  custom  to  deliver  goods  to  person 
holding  unindorsed  bill  of  lading,  unknown  to  the  consignor  when  the  goods 
were  shipped,  is  no  defense  to  an  action  for  the  value  of  goods  so  delivered. 
Weyand  v.  Atchison,  T.  &  S.  F.  Ry.  Co..  75  Iowa,  573,  39  N.  W.  899.  An 
agent  sold  goods  on  credit.  His  principal  sent  them  marked  C.  O.  D.  The 
carrier,  on  a  written  order  of  the  agent,  delivered  the  goods  without  receiv- 
ing the  cash.  Held,  that  it  was  a  question  for  the  jury  whether  the  mark 
"C.  O.  D."  was  notice  to  the  carrier  of  the  agent's  want  of  authority.  Day- 
light Burner  Co.  v.  Odlin,  51  N.  H.  56.  Where  consignor  of  goods  is  guilty 
of  negligence  in  not  properly  marking  their  destination  upon  them,  carriers 
are  not  liable  for  injuries  arising  from  their  being  missent  Congar  v.  Chi- 
cago &  N.  W.  Ry.  Co.,  2A  Wis.  157. 

748  Price  V.  Railway  Co.,  50  N.  Y.  213;  Winslow  v.  Railroad  Co.,  42  Vt. 
700;  Stephenson  v.  Hnrt  4  Bing.  476.  But  see  McKean  v.  Mclvor,  L.  R.  6 
Eich.  36;   Heugh  v.  Railroad  Co.,  L.  R.  5  Exch.  51. 

7<9  American  Exp.  Co.  v.  Fletcher,  25  Ind.  492;  American  Exp.  Co.  v. 
Stack,  29  Ind.  27;  Duff  v.  Budd,  3  Brod,  &  B.  177.  But  see  Heugh  v.  Rail- 
road Co.,  L.  R,  5  Exch.  50. 


§    08]  TERMINATION EXCUSES    FOR    NONDEUVEKY.  470 

riage  of  the  goods  is  intrusted,  for  delivering  them  to  A.""  r.ut 
if^A.  represents  himself  to  be  an  agent  of  the  mcrchtuit.  and  that 
he  is  buying  for  him,  the  carrier  is  liable  to  the  seUer  if  the  jumhU 
are  delivered  to  A.  at  the  station  to  wliich  they  wei <<'-:','ncd."" 

Rival  Claimants. 

"Ordinarily  the  person  who  delivers  the  goods  to  the  company  is 
to  be  treated  by  them  as  the  owner,  and  in  general  his  title  may 
not  be  disputed  by  the  company,  or  a  jus  tertii  or  advci-Ht'  title  he 
set  up,  but  the  goods  must  be  delivered  according  to  liis  directions, 
without  putting  him  to  proof  of  his  title.'"  Uluit  applies,  how- 
ever, only  where  such  adverse  claim  is  not  asserted  by  the  superior 
claimant  to  the  sender,  but  merely  by  the  carrier's  own  motion/'* 
But  should  the  goods  be  the  property  of  a  third  person,  who  is  also 
entitled  to  the  possession  of  them,  and  while  in  the  custody  of  the 
company  such  owner  should  demand  possession,  they  would  be  jus- 
tified in  delivering  the  goods  to  him.'"^*  Nor  are  they  precluded, 
by  reason  of  having  received  goods  from  a  particular  individual, 
from  setting  up  the  title  of  a  third  party,  really  entitled  thereto, 
who  has  claimed  and  received  the  goods."  ^*''     If  the  carrier  lias  de- 

7 BO  Edmunds  v.  Transportation  Co.,  135  Mass.  283.  And  see  Dunbar  v.  Rail- 
road Co.,  110  Mass.  2G.  In  most  of  these  cases  a  swindler  has  gone  Into  a 
town  and  opened  a  store  under  the  same  name  aS  somf  reputable  merchant  of 
the  town.  The  swindler  then  orders  goods  which  are  sent  on  the  strcnglh  of 
the  real  merchant's  commercial  standing.  The  carrier  is  held  not  liable  for  a 
delivery  to  the  swindler.  Samuel  v.  Cheney,  Vi't  Mass.  278;  The  Drew,  l."> 
Fed.  82G;  Bush  v.  Railroad  Co.,  3  Mo.  App.  02;  Wilsoa  v.  E.vprciJS  Co..  27  Mo. 
App.  360.     See  Pacific  Exp.  Co.  v.  Shearer,  IGO  111.  215.  43  N.  E.  810. 

'51  Edmunds  v.  Transportation  Co.,  135  Mass.  28.3. 

7.'52  Sheridan  v.  New  Quay  Co.,  4  C.  B.  (N.  S.)  OlS;  Lacouch  v.  Powell.  3  Esj). 
115. 

T03  Wells  V.  Express  Co.,  55  Wis.  23.  11  N.  W.  537.  12  N.  W.  Ml. 

TB4  Western  Transp.  Co.  v.  Barber,  50  N.  Y.  .544;  Bates  v.  .Stanton.  1  Diier. 
79;  Floyd  v.  Bovard,  6  Watts  &  S.  (Pa.)  75;  King  v.  Richards,  6  Whart  (Pa.) 
418;  The  Idaho,  93  U.  S.  575;  Rosenfield  v.  Express  Co..  1  Woods,  131.  Fed. 
Cas.  No.  12,000;  Great  Western  Ry.  Co.  v.  Crouch.  3  Hurl.  &  N.  18.3;  Boroupl.* 
V.  Bayne,  5  Hurl.  &  N.  290;  Taylor  v.  Plunior.  3  Maule  i  S.  502.  A  rofuKil 
to  deliver  would  constitute  a  conversion.  Shellenberg  v.  Rnllrond  Co..  4.' 
Neb.  487,  03  N.  W.  859. 

T65  Redm.  Carr.  100;  Sheridan  v.  New  Quay  Co..  4  C.  R.  (N.  R.)  CIS;  Hani- 
man  V.  WillcoclJ,  9  Bing.  382;  Riddle  v.  Bond,  6  Best  &  S.  225;  Cho«^smnn  v. 
ExaU,  6  Exch.  341;   Dixon  v.  Yates,  5  Barn.  &  Adol.  340;   American  llxp.  Co. 


480  CAERIERS   OF    GOODS.  [Ch.  7 

livered  the  goods,  according  to  the  terms  of  the  contract  of  car- 
riage, before  the  real  owner  claims  them,  the  carrier  is  not  liable.'^'*' 
The  principles  applicable  to  this  branch  of  the  subject  have  already 
been  discussed  in  connection  with  other  bailments.^ *^ 

Stoppage  in  Transitu. 

A  carrier  is  excused  for  nondelivery  if  the  vendor  of  the  goods 
exercises  the  right  of  stoppage  in  transitu.^ ^^  This  right  exists 
whenever  an  unpaid  vendor  leai'ns  of  the  insolvency  of  the  con- 
signee before  the  goods  have  been  delivered  to  the  latter.^ '^^  The 
carrier  is  not,  however,  bound  to  ascertain,  at  his  peril,  the  fact  of 

fthe  consignee's  insolvency.''^'*  The  assertion  of  Mr,  Hutchinson  ^®^ 
to  the  contrary  is  directly  opposed  to  the  cases  which  he  cites,^*^ 
and  of  the  text  writer  ^*'  cited.  Toulmin,  J.,  in  The  Vidette,^®* 
says:  *1  have  found  but  one  authority,  and  that  a  text  writer, 
(Blackb.  Sales),  which  holds  that  the  carrier  delivers  the  goods  to 
the  vendor  at  his  peril,  and  would  probably  be  responsible  to  the 
vendee  therefor  if  the  stoppage  was  wrongful.     But  I  have  found 

V.  Greenhalgh,  80  111.  68;  Young  v.  Railway  Co.,  80  Ala.  100;  Wolfe  v.  Rail- 
way Co.,  97  Mo.  473,  11  S.  W.  49.  To  justify  delivery  to  the  true  owner,  con- 
trary to  or  without  the  shipper's  orders,  the  carrier  ha?  the  burden  of  proving 
the  ownership  and  immediate  right  of  possession  in  the  nerson  to  whom  such 
delivery  is  made.     Wolfe  v.  Missouri  Pac.  Ry.  Co.,  97  Mo.  473,  11  S.  W.  49. 

T56  Sheridan  v.  New  Quay  Co.,  4  C.  B.  (N.  S.)  U18. 

7  67  Ante,  p.  32. 

7B8  Hutch.  Carr.  (2d  Ed.)  §  409;  McFetridge  v.  Piper,  40  Iowa,  627;  Reyn- 
olds V.  Railroad,  43  N.  H.  580;   Newhall  v.  Vargas,  13  Me.  93. 

7  59  Rowley  V.  Bigelow,  12  Pick.  307,  313;  Durgy  Cement  &  Umber  Co.  v. 
O'Brien,  123  Mass.  12;  Seymour  v.  Newton,  105  Mass.  272;  Muller  v.  Pondir, 
55  N.  Y.  325;  Gossler  v.  Schepeler,  5  Daly,  476;  Gwyn  v.  Railroad  Co.,  85  N. 
C.  429;  Benedict  v.  Schaettle,  12  Ohio  St.  515;  Reynolds  v.  Railroad,  43  N.  H. 
580;  Loeb  v.  Peters,  63  Ala.  243;  Secomb  v.  Nutt,  14  B.  Mon.  (Ky.)  324;  Mil- 
lard V.  Webster,  54  Conn.  415,  8  Atl.  470.  For  a  case  where  the  right  does 
not  exist,  see  Lester  v.  Railroad  Co.,  73  Hun,  398,  26  N.  Y.  Supp.'  206. 

760  The  Vidette,  34  Fed.  396;  The  E.  H.  Pray,  27  Fed.  474;  Allen  v.  Rail- 
road Co.,  79  Me.  327,  9  Atl.  895;  Bloomingdale  v.  Railroad  Co.,  6  Lea  (Tenn.) 
616;   The  Tigress,  Brown  &  L.  45. 

T«i  Carriers  (2d  Ed.)  §  421. 

7  62  The  Vidette,  34  Fed.  396;  The  E.  H.  Pray,  27  Fed.  474. 

7«3  Blackb.  Sales,  266.  * 

T«*34  Fed.  396, 


§    98]  TERMINATION EXCUSES    FOR    NciNDEI  IVKI:Y.  481 

no  case  where  a  court  has  followed  this  rule."  A  notice  to  tin-  car 
rler  not  to  deliver  the  goods  is  a  suflicient  exercise  of  the  ri^bt.  It 
is  not  necessary  that  the  vendor  or  his  aj^ent  should  demand  a  de- 
livery of  the  goods  to  himself.'""  The  carrier  can  excuse  nondr^ 
livery  on  the  ground  of  stoppage  in  transihi  (uil.v  win  n  ili<'  iioiice 
of  stoppage  was  given  during  the  course  of  transit."''"  For  tliis 
purpose  the  transit  is  deemed  to  continue  until  "(a)  the  buyer,  or 
his  agent  in  that  behalf,  takes  delivery  of  the  goods  from  the  car- 
rier, either  before  or  after  their  arrival  at  the  appointed  destina- 
tion;'"^ or  (b)  after  the  arrival  of  the  goods  at  their  ajipointed 
destination  the  carrier  attorns  to  the  buyer,  and  continues  in  pos- 
session  as  bailee  for  the  buyer;  ^'^  or  (c)   the  carrier  wrongfully 

T66  Bell  v.  Moss,  5  Whart.  (Pa.)  189;  Reynolds  v  Railroad,  43  N.  H.  TtSO; 
Allen  V.  Railroad  Co.,  79  Me.  327,  9  Atl.  895;  NewhaU  v.  Vargas,  13  M.'.  93: 
Jones  v.  Earle,  87  Cal.  630;  Rucker  v.  Donovan,  13  Kan.  190;  Ex  parte  Wat- 
son, 5  Ch.  Div.  35;  Lett  v.  Cawley,  1  Taunt.  GOG;  Whiteliead  v.  Anderson.  J 
Mees.  &  W.  518,  532. 

7  88  Schotsmans  v.  Railroad  Co.,  3  Ch.  App.  332.  Cf.  liawley  v.  Blpelow,  12 
Pick.  (Mass.)  307. 

7  67  Seymour  v.  Newton,  105  2tfass.  272;  Kingman  v.  Denison,  84  Mich.  G08, 
48  N.  W.  26;  White  v.  Mitchell,  38  Mich.  390;  Jenks  v.  Fulmer,  100  Pa.  St. 
527,  28  Atl.  841;  Grive  v.  Dunham,  60  Iowa.  108.  14  N.  W.  130;  Symns  v. 
Schotten,  35  Kan.  310,  10  Pac.  828;  Whitehead  v.  Anderson,  9  Mees.  &  W.  518; 
Crawshay  v.  Eades,  1  Barn.  &  C.  182;  Bolton  v.  Railway  Co.,  L.  R.  1  C.  P. 
431;  James  v.  Griffin,  2  Mees.  &  W.  623. 

70  8  McFetridge  v.  Piper,  40  Iowa,  627;  Langstaff  v.  Stix,  04  Miss.  171.  1 
South.  97;  Williams  v.  Hodges,  113  N.  C.  3G,  18  S.  E.  83;  James  v.  Grlflln 
2  Mees.  &  W.  G23;  Ex  parte  Cooper,  L.  R.  11  Ch.  Div.  CkS.  'riu-n'  is  no  con- 
structive possession  on  the  part  of  the  vendee,  unless  the  relation  In  wlilch  the 
carrier  stood  before,  as  a  mere  instrument  of  conveyance  to  an  appointed 
place  of  destination,  has  been  altered  by  a  contract,  between  the  vendee  and 
the  carrier,  that  the  latter  should  hold  or  keep  the  goods  as  the  agent  of  the 
vendee.  Foster  v.  Frampton,  6  Barn.  &  C.  107;  Whitehead  v.  Anderson.  9 
Mees.  &  W.  518;  Reynolds  v.  Railroad,  43  N.  H.  580.  Such  is  the  relation 
when  the  consignee  calls  for  the  goods,  and  the  carrier  agrees  that  he  will 
hold  them  for  him.  Richardson  v.  Goss,  3  Bos.  &  P.  119,  127;  Scott  v.  PetUt, 
8  Bos.  &  P.  469;  Moriey  v.  Hay,  3  Man.  &  R.  306;  Rowe  v.  Plokford,  1  McKire. 
526;  Allan  v.  Gripper,  2  Cromp.  &  J.  218.  Or  where  the  consignee  has  l)een  In 
the  habit  of  using  the  warehouse  of  the  carrier  o.  wharflnger  as  his  own. 
Tucker  v.  Humphrey,  4  Bing.  516,  521;  Fostei  v.  Frampton,  6  Barn.  &  C.  107. 
109.  But  where  the  goods  remain  In  the  actual  possession  of  the  carrier  with- 
out fault  on  his  part  (Crawshay  v.  Eades.  4  Barn.   &   C  181;    Tucker  t. 

LAW  BAILM. — 31 


482  CARRIERS    OF    GOODS.  [Ch.  7 

refuses  to  deliver  the  goods  to  the  buyer  or  his  agent  in  that  be- 
half." ^*"  But  when  the  goods  are  represented  by  a  bill  of  lad- 
ing a  notice  of  stoppage  will  not  excuse,  the  carrier  from  deliver- 
ing them  to  an^  assignee  ^^°  for  value  ''"'^  before  the  right  is  exer- 
cised.''^' 

Excepted  Perils. 

If,  for  any  reason,  the  carrier  is  not  liable  for  goods  which  have 
been  lost,  there  is,  of  course,  no  liability  for  nondelivery.  These 
excepted  perils,  including  limitation  of  liability  by  special  con- 
tract, have  already  been  discussed."^ 

Humphrey,  4  Bing.  516;  Hoist  v.  Pownal,  1  Esp.  240;  Lackington  v.  Atherton, 
8  Scott,  N.  R.  38;  Stoveld  v.  Hughes,  14  East,  308);  or  in  the  hands  of  a  deposi- 
tary, or  in  the  custom-house  till  the  duties  are  paid  (Mottram  v.  Heyer,  5 
Denio,  629;  Newhall  v.  Vargas,  13  Me.  93,  109;  Northey  v.  Field,  2  Esp.  613); 
or  until  necessai-y  papers  are  produced  (Donath  v.  Broomhead,  7  Pa.  St.  301); 
or  while  the  /essel  is  lying  in  quarantine  (Hoist  v.  Pownal,  1  Esp.  240),— there 
is  no  delivery,  either  actual  or  constructive. 
7  89  Bird  v.  Brown,  4  Exch.  786. 

770  Newhall  v.  Railroad  Co.,  51  Cal.  345;  Loeb  v.  Petei-s,  03  Ala.  243;  Cum- 
ing V.  Brown,  9  East,  506:  Salomons  v.  Nissen,  2  Term  R.  674,  681.  But  see 
Pattison  v.  Culton,  33  Ind.  240;  Vertue  v.  JeweU,  4  Camp.  31;  Stanton  v. 
Eager,  16  Pick.  467. 

771  St.  Paul  Roller-Mill  Co.  v.  Great  Western  Dispatch  Co.,  27  Fed.  434; 
Lesassier  v.  The  Southwestern,  2  Woods,  35,  Fed.  Cas.  No.  8,274;  Lee  v. 
Kimball,  45  Me,  172;  Loeb  v.  Peters,  63  Ala.  243;  Leask  v.  Scott,  2  Q.  B. 
Div.  376. 

772  Walter  v.  Ross,  2  Wash.  C.  C.  283,  Fed.  Cas.  No.  17,122;  Castanola  v. 
Railroad  Co.,  24  Fed.  267,  and  note.  But  see  Olapp  v.  Sohmer,  55  Iowa,  273. 
7  N.  W.  639;   Kemp  v.  Falk,  7  App.  Gas.  573. 

tT«  Ante,  pp.  351,  413. 


^ 


§§    9'J-JOO]  \     r03T-OFFICE    DEPARTMENT.  /  ^83 , 


POST-OFFICE  DEPARTMENT. 


99.  The    post-office    department   is    a  carrier  of  the    mail, 

but,  being  a  branch  of  the  governniont,  cannot  bo 
sued  for  losses  occurring  in  transmission. 

100.  Postmasters  and  other  officials  of  the  department  are 

liable  for  losses  sustained  by  individuals  only — 

(a)  For  their  own  negligence  or  misconduct  (p.  485  j. 

(b)  For  negligence  in  selecting  subordinates,  or  in  super- 

vising their  conduct  (p.  487). 

(c)  For  the  acts  of  their   private  servants,  who  are  not 

agents  of  the  government  (p.  487). 

Common  carriers  may  transport  the  same  matter  as  is  carried  in 
the  United  States  mails,  and  for  losses  or  injuries  to  such  matter  the 
carrier  would  be  responsible  in  the  same  dej^ree  as  for  other  property 
carried.''^"  But  mail  matter  may  also  be  carried  by  persons  who 
are  not  common  carriers.  If  this  is  done  gratuitously,  tliey  become 
bailees  for  the  sole  benelit  of  the  bailor,  and  bound  to  the  exerci.><(' 
of  only  slight  diligence."^  If  the  carrier  receives  compensation,  the 
bailment  is  one  for  hire,  and  the  liabilities  of  a  bailee  for  hire  attach; 
that  is,  the  carrier  is  bound  to  use  ordinary  care."^ 

The  business  of  transporting  mail  matter  by  private  persona  is, 
however,  limited  to  carrying  by  special  trips;  f«>r  Kev.  8t.  U.  8.  § 
3982,  provides  that  "no  person  shall  establish  any  private  express  for 
the  conveyance  of  letters  or  packets,  or  in  iiny  manner  cause  or  pro- 
vide for  the  conveyance  of  the  same  by  reguUu-  trips  or  at  slated 
periods,  over  any  post-route  which  is  or  may  be  established  by  law, 
o,r  from  any  city,  town,  or  place  to  any  other  city,  town,  or  place  b<^ 
tween  which  the  mail  is  regularly  carried.""'     The  purpose  of  this 

77  6  See  ante.  p.  351. 
77  6  See  ante,  p.  302. 

777  See  ante,  p.  302. 

778  See,  also.  Rev.  St.  U.  S.  §§  3983-3091.  The  exceptions  to  this  rtntnto  nre: 
(1)  When  the  carrying  is  gratuitous.  Id.  §  3'JU2.  (2)  When  the  letter  Is  In- 
closed in  a  sealed  stamped  envelope  with  as  much  pt>«ta«e  thereou  aa  would 
be  charged  if  the  letter  was  carried  in  the  malL    Id.  i  3UU3. 


484  CARRIERS    OF   GOODS.  [Ch.   7 

enactment  is  to  prevent  competition  with  the  post-office  depart- 
ment'''"  This  department  is  a  branch  of  the  government,  instituted 
for  public  convenience.  The  government  of  the  United  States  has 
undertaken  the  business  of  conducting  the  transmission  and  distribu- 
tion and  delivery  of  all  mail  matter.  The  government  is  the  carrier 
of  the  mails.  It  carries  them  by  the  aid  of  agents  it  contracts 
with  for  this  service.  Contractors  for  carrying  the  mail  are  the 
agents  of  the  government  in  the  business  undertaken  by  them.  The 
sender  of  mail  matter  has  no  cont.ract  with  the  carrier  of  the  mail 
bags,  and  does  not  commit  his  mail  matter  to  him,  but  to  the  govern- 
ment, which  has  undertaken  to  receive,  carry,  and  deliver  it.  The 
contractor  for  carrying  the  mail  is  neither  a  common  carrier  no,r  a 
private  carrier.  He  does  not  carry  for  individuals,  nor  receive  any 
compensation  from  them.  He  has  no  knowledge  of  the  mail  matter 
he  carries,  and  no  control  over  it,  except  to  obey  the  instructions  of 
the  post-office  department.  Letters  and  packets  are  inclosed  in  gov- 
ernment mail  bags,  secured  by  locks  provided  by  the  government, 
and  at  all  times  subject  to  the  supervision  and  control  of  the  officers 
and  agents  of  the  government  in  the  post-office  department,  who  may 
open  the  mail  bags,  and  inspect  the  mail  matter  they  contain,  at  will. 
Contractors  for  carrying  the  mail  are  instruments  of  government,, 
whereby  it  performs  the  function  of  transmitting  mail  matter  from 
place  to  place  in  the  execution  of  this  part  of  its  business.  A  rail- 
road company  is  not  transformed  into  a  common  carrier,  as  to  the 
mails,  because,  being  engaged  in  the  regular  business  of  transporting 
goods  for  the  public,  it  is  at  the  same  time  carrying  the  mails  by  di- 
recllon  and  employment  of  the  proper  department  of  the  government. 
The  occupation  of  the  company  is  of  a  dual  character.  It  is  acting 
in  two  capacities,  created  and  regulated  by  separate  and  distinct  con- 
tracts and  employments.^^" 

Liability  of  Post-  Office  Department  as  a  Carrier. 

It  is  unnecessai-y  to  decide  what  is  the  actual  relation  of  the  post- 
office  department  to  those  who  employ  its  agencies  for  the  transmis- 

7T8  u.  S.  V.  Bromley,  12  How.  88;   Blackbam  v.  Gresham,  16  Fed.  G09;   U.  S. 
V.  Easson,  18  Fed.  590. 
T«o  Central  Railroad  &  Banking  Co.  v.  Lampley,  76  Ala.  357. 


^§    UD-lOO]  POST-OFFICE    DF.PARTMF.NT.  485 

sion  of  mail  matter,  because  the  department  is  a  branch  of  govern- 
ment, and  consequently  cannot  be  sued  without  its  consent.'"  (>u 
this  point  Mr.  Schouler  says:  ^"  "Should  a  common-law  country  ever 
submit  to  a  legal  exposition  the  rightful  standard  of  government  re- 
sponsibility to  individual  bailors  as  a  mail  carrier,  the  courts  would 
not  probably  reckon  this  at  the  extraordinary  Ktandard  of  a  coiuiimju 
carrier  (since  widely  different  considerations  of  public  policy  apply), 
but,  rather,  at  that  of  ordinary  bailees  for  hire;  wliilc  perhaps,  were 
it  made  to  appear,  from  public  tables,  that  the  postage  charged  the 
injured  individual  served  not  for  actual  recompense  in  the  bailment, 
but  merely  to  help  defray  the  necessary  costs  of  a  transportation 
which  government  carried  on  at  a  loss  for  the  benefit  of  the  public, 
the  standa.rd  would  fall  to  the  register  of  gratuitous  bailment.  Hut 
that  a  bailment  duty  of  some  sort  coexists  on  the  part  of  government, 
apart  from  the  adequate  means  of  enforcing  it,  we  cannot  reasonably 
doubt." 

Liability  of  Postmasters. 

"In  so  far  as  a  public  officer  or  institution  executes  the  author- 
ity or  performs  the  functions  of  the  government,  the  exemjttion  of 
the  state  for  wrong  applies  to  him."^^^  This  rule  is  applied  to 
postmasters  and  other  persons  employed  in  the  post-ofTice  depart- 
ment. But  a  postmaster  is  liable  to  a  person  injured  by  his  neg- 
ligence or  misconduct,  and  for  the  acts  of  a  clerk  or  deputy  author- 
ized by  him  J** 

T81  1  Jagg.  Torts,  110;  Murdock  Parlor  Grate  Co.  v.  Com.,  1G2  Maes.  28,  24 
N.  E.  854;  U.  S.  v.  Lee,  lOG  U.  S.  19G.  1  Sup.  Ct.  240;  Langford  v.  U.  S..  101 
U.  S.  341;  Gibbons  v.  U.  S.,  8  Wall.  209;  Hill  v.  U.  S..  14U  U.  S.  Sl)3.  13  .^ui). 
Ct.  1011;  German  Bank  of  Memphis  v.  U.  S.,  148  U.  S.  073,  18  Sup.  CL  702; 
Schillinger  v.  U.  S.,  155  U.  S.  1G3,  15  Sup.  Ct  85. 

7  82  Bailments  (2d  Ed.)  §  209. 

7  88  1  Jagg.  Torts,  126. 

784  Diuilop  V.  Munroe,  7  Cranch,  242;  Maxwell  v.  M'llToy.  2  Bibb  (Ky.) 
211;  Danforth  v.- Grant,  14  Vt.  283;  Stock  v.  UarrlB,  5  Burrows.  2709; 
Rowning  v.  Goodchild,  3  Wils.  443;  Wiggins  v.  Hathaway.  0  Barb.  032.  A 
postmaster  may  bo  liable  for  charging  letter  postage  on  a  newspaper.  Teall 
V.  Felton,  1  N.  Y.  537,  affirmed  12  How.  284.  If  a  clerk  at  the  post  offloe  re- 
ceives from  J.  S.  a  letter  containing  money,  to  be  sent  by  mall  as  a  registered 
letter,  under  a  mutual  mistaken  belief  that  letters  can  be  reflalenxl  to  the 


486  CARRIERS    OF    GOODS.  [Cll.   7 

The  responsibility  of  a  postmaster  for  money  or  letters  received 
by  him  in  his  official  character  is  not  that  of  a  common  carrier. 
Proof  that  letters  containing  money  were  delivered  to  him  for  reg- 
istration, or  to  an  assistant  in  his  presence  and  by  his  direction, 
and  of  the  loss  of  the  letters  and  money,  without  more,  is  not  suffi- 
cient to  authorize  a  recovery.  The  burden  is  on  the  plaintiff  to 
affirmatively  show  culpable  negligence,  and  such  a  state  of  facts 
as  to  authorize  the  jury  to  attribute  the  loss  to  such  negligence.  It 
is  sufficient  that  the  jury  are  reasonably  satisfied  that  the  defend- 
ant did  not  exercise  that  care  and  prudence  in  the  discharge  of  his 
duties  in  regard  to  the  letters  as  a  reasonable  and  prudent  man 
would  in  regard  to  his  own  business,  and  that  such  neglect  was  the 
cause  of  the  loss  or  injury.''®'^  As  to  a  postmaster's  lirbility  for 
acts  of  subordinates  not  authorized,  the  leading  case  is  Lane  v.  Cot- 
ton,^*® decided  in  1701.  That  action  was  case  against  the  defend- 
ant, as  postmaster  general  of  England,  for  negligence  in  the  exe- 
cution of  his  office.  It  appeared,  in  a  special  verdict,  that  a  let- 
ter of  the  plaintiff's,  containing  eight  exchequer  bills,  was  depos- 
ited in  the  post  office  in  London,  which  was  in  charge  of  the  defend- 
ant's deputy,  and  the  letter  was  opened  in  the  office,  by  some  per- 
son unknown,  and  the  bills  taken  away.  It  was  held  by  three 
judges,  against  an  elaborate  dissenting  opinion  of  Lord  Holt,  that 
the  defendants  were  not  liable  for  the  defaults  of  the  other  officers 
and  agents  of  the  post  office,  on  the  ground  that  the  post  office  was 
an  institution  of  the  government,  established  and  regulated  by 
law;  that  all  the  officers  and  agents  of  the  post  office  were  officers 
and  agents  of  the  government,  and  not  the  agents  and  servants  of 
the  postmaster;  that  no  contract  was  made  by  the  postmaster,  or 
any  officer  or  agent  of  the  post  office,  with  those  who  use  the  public 
accommodation  of  the  office;  that  each  officer  and  agent  was  liable, 

place  to  which  it  Is  addressed,  and  then,  on  discovering  the  mistake,  sends 
It  by  mail  unregistered,  by  direction  of  his  superior  officer,  and  it  is  lost,  they 
are  liable  to  J.  S.  for  its  value.  Fitzgerald  v.  Burrill,  106  Mass.  446.  As  to 
liability  of  a  postmaster  for  property  turned  over  to  the  Confederate  govern- 
ment, see  U.  S.  V.  Morrison,  Chase,  521,  Fed.  Cas.  No.  15,817. 

T88  Ralsler  v.  Oliver,  97  Ala.  710,  12  South.  238;  Christy  v.  Smith.  23  VL 
663;   Danforth  v.  Grant,  14  Vt.  283;   Wiggins  v.  Hathaway,  6  Barb.  632. 

T««  1  Ld.  Raym.  646,  12  Mod.  472,  1  Salt.  17. 


§§    99-100]  POST-OFFICE   DEPARTMENT.  4S7 

in  a  proper  form  of  action,  to  any  individuul  who  had  8u(T(*r«d  hy 
his  neglect  of  duty,  but  tliat  no  ofDcer  or  aj^ent  was  liaMe  for  thi» 
default  of  another.      This  case  has  been  followed,  and  the  rule  is 
now  well  settled  that  a  postmaster  is  not  responsible  for  the  de- 
faults  or  misfeasance   of   his   clerks   or   assistants,   althou;j;h   ap- 
pointed by  him  and  under  his  control,  unless  it  be  shown  that  the 
postmaster  was  negligent  in  not  exercising  proper  care  and  pru- 
dence in  the  selection  of  suitable  and  competent  personR  to  per- 
form the  duties  of  clerks  or  deputy  assistants,  or  unless  it  be  shown 
that  the  postmaster  himself  was  negligent  in  the  duty  resting  upon 
him, — to  properly  superintend  such  clerks  or  assistants  in  the  per- 
formance of  the  particular  acts  or  duty,  the  doing  of  which,  or  the 
omission  to  do  which,  caused  the  loss  and  injury.^*^      The  exemp- 
tion from  liability  of  the  postmaster  for  the  defaults  and  misfea- 
sance of  his  clerks  and  subassistants  is  available  to  the  postmaster 
only  in  cases  where  such  clerks  or  subassistants  are  appointed  in 
pursuance  of  some  law  expressly  authorizing  it,  so  that,  by  virtue 
of  the  law  and  the  appointment,  the  appointees  become,  in  some 
sort,  public  officers  themselves.      The  rules  and  regulations  of  the 
post-office  department  provide  for  employment  of  clerks  and  assist- 
ants, when  necessary  for  a  proper  and  speedy  discharge  of  the 
business  of  the  office;   and,  when  made  in  pursuance  of  such  rules 
and  regulations,  the  postmaster  himself  is  not  responsible  for  the 
defaults  of  his  clerks  and  assistants,  unless,  under  proper  aver- 
ments, it  be  shown  there  was  negligence  in  their  selection  or  su- 
perintendence, as  stated  above.      But  a  postmaster  who  employs 
a  clerk  or  assistant,  independent  of  express  autliority.  and  who  in 
paid  by  him  out  of  his  own  salary  or  means,  is  liable  for  the  de- 
fault or  misfeasance  of  his  clerk  or  assistant,  as  any  private  per- 
son would  be  for  the  acts  of  his  agent  or  employ^.    The  doctrine  of 
respondeat  superior  applies  in  such  cases.'""      Hut  as  to  what  acts 

TSTHutchins  v.  Brackett,  2  Fost.  (N.  H.)  'Jo^;  Whitnc-ld  v.  Lc  Despencer. 
2  Cowp.  754;  Dunlop  v.  Munroe,  7  Crancb.  242;  Scbroyor  v.  Lynch.  S  WatlM. 
453;  Bisliop  V.  Williamson,  11  Me.  495;  Story.  Ag.  §  310a;  Story.  Bniliu.  | 
463-  Wilson  v.  Peverly,  1  Am.  Lead.  Cas.  778.  785;  Wiggins  v.  llatl.uwuy.  e 
Barb.  632;  Keenan  v.  Soutbworth.  110  Mass.  474;  Wbart  Nog.  I  2:i2:  B.-lnn 
V.  Williamson,  1  Brev.  (S.  C.)  181;   Id  .  2- Bay.  551. 

T88  Raisler  v.  Oliver.  97  Ala.  71U,  12  Suutb.  238;    Biebcp  v.  WilUamsoo,  U 


CARRIERS    OF   GOODS. 


[Ch.  7 


of  such  a  servant  or  agent  the  postmaster  will  be  liable  for  is 
to  be  determined,  as  in  other  cases  of  master  and  servant,  by  the 
course  of  employment.''" 

Liability  of  Contractors  for  Carrying  the  Mails. 

Like  postmasters,  contractors  for  carrying  the  mail  are  respon- 
sible for  their  own  misfeasances,  but  not  for  those  of  their  assist- 
ants. The  assistants  must  answer  for  themselves.  The  only  se- 
curity for  the  safe  transmission  of  packages  by  mail  is  the  safe- 
guards thrown  around  it  by  the  regulations  of  the  government, 
which  announces  that  all  valuables  sent  by  mail  shall  be  at  the 
risk  of  the  owner.  All  that  the  government  promises,  in  case  of 
loss  of  money  or  other  valuables  from  the  mail,  is  to  endeavor  to 
recover  it  and  to  punish  the  offender.^^"  The  duty  of  contractors  to 
carry  the  mail  is  to  carry  it  from  place  to  place,  subject  to  the  reg- 
ulations of  the  post-office  officials.  Their  obligation  is  to  the  gov- 
ernment. They  and  their  assistants  are  agents  of  the  government, 
and  subject  to  the  rule  of  law  applicable  in  such  cases. '"^  A  rider 
or  driver  employed  by  the  contractor  for  carrying  the  mails  is  an 
assistant  about  the  business  of  the  government.  Although  em- 
ployed and  paid,  and  liable  to  be  discharged  at  pleasure,  by  the 
contractor,  the  rider  or  driver  is  not  engaged  in  the  private  service 
of  the  contractor,  but  is  employed  in  the  public  service,  and  there- 
fore the  contractor  is  not  liable  for  his  acts.'^®^ 


^ 


Me.  495;  Ford  v.  Parker,  4  Ohio  St.  576;  Christy  v.  Smith,  23  Vt.  663;  Cole- 
man V.  Frazier,  4  Rich.  (S.  C.)  146. 

T88  See  Jagg.  Torts,  239. 

T90  Foster  v.  Metts,  55  Miss.  77;  Con  well  v.  Voorhees,  13  Ohio,  523;  Hutch- 
ins  V.  Bracliett,  22  N.  H.  252.  In  Sawyer  v.  Cor^e,  17  Grat.  (Va.)  230,  a 
contractor  was  held  liable  for  negligence  of  a  carrier  not  sworn  as  required 
by  law. 

791  Story,  Ag.  §§  313,  319a,  321;  1  Shear.  &  R.  Neg.  §  325;  Central  R.  &  B. 
Co.  V.  Lampley,  76  Ala.  357. 

T82  Central  R.  &  B.  Co.  v.  Lampley,  supra;  U.  S.  v.  Belew,  2  Brock.  280, 
Fed.  Caa  No.  14,563. 


^^^^^^^--McGor-^tJ^X^^ 


^   ^'^'^ 


§    101]  CARRIERS    OF    PA88EJNG£H8.                                              48y 

CHAPTER  VTTT. 

CARRIERS  OF  PASSENGERS 

■    101.  Who  are  Carriers  of  Passenyera. 

102-103.  Who  are  Passengers. 

104.  When   Liability   Attaches. 

105.  Rights  and  Liabilities. 

106.  Duty  to  Accept  Passengers. 

107.  Duty  to  Furnish  Equal  Accommodatlona. 
lOS.  Right  to  Componsation. 

109.  Ticljet  as  Evidence  of  Passenger'*  Rlghta. 

110.  Rifiht  to  Make  Regulations. 
Ill  Liability  for  Delay. 

112-113.  Injuries  to  Passengers. 

114.  Contracts  Limiting  Liability. 

115.  Termination. 

116-118.  Ejection  from   Vehicle. 

119.  Alighting  at  Station. 

120.  Connecting  Carriers. 


WHO  ARE  CARRIERS  OF  PASSENGERS. 

101.  Carriers  of  passengers  are  persons  or  corporations  en- 
gaged in  the  transportation  of  human  beings.  They 
are: . 

(a)  Public  carriers  of  passengers,  who  hold   themselves 

out  to  carry  all  proper  persons  who  apply. 

(b)  Private   carriers   of  passengers,  who    carry  only  on 

special  contracts. 

By  the  term  "carriers  of  passengers"  is  commonlj  meant  public 
carriers  of  passengers,  but  all  persons  or  corporations  who  trans- 
port persons  for  hire  are  not  public  carriers  of  passengers.  Pub- 
lic carriers  of  passengers  exercise  a  public  calling,  ami.  bv  ho  do- 
ing, have  certain  exceptional  liabilities  imposed  on  them  to  which 
private  carriers  are  not  subject.  'I]ie  latter  are  bound  merely  to 
the  exercise  of  ordinary  care,  and  to  carry  only  for  those  whose 
employmept  they  choose  to  accept.  To  make  one  a  public  carrier 
of  passengers,  he  must  engage  publicly  in  that  business,  and  hold 


490  CARRIERS    OF    PASSENGERS.  [Ch.  8 

himself  out  to  carry  all  proper  persons  who  may  apply.  A  wagon- 
er, who  occasionally  carries  a  passenger  upon  his  wagon  as  a  mat- 
ter of  special  accommodation  and  agreement,  does  not  thereby  be- 
come a  public  carrier  of  passengers.  He  only  becomes  such  when 
the  carrying  of  passengers  becomes  an  habitual  business.^  One 
who  furnishes  horses  and  carriages  for  hire  is  not  a  public  carrier 
of  passengers,'  When  contractors  for  building  a  railroad,  running 
a  construction  train,  consent  to  take  a  passenger  for  hire  on  their 
train,  they  are  private  carriers  for  hire,  and  are  only  bound  to 
exercise  such  care  and  skill  in  the  management  and  running  of 
the  train  as  prudent  and  cautious  men,  experienced  in  that  busi- 
ness, are  accustomed  to  use  under  similar  circumstances.  Such 
care  implies  a  watchful  attention  to  the  working  of  the  engine, 
the  movement  of  the  cars  and  their  running  gear,  and  a  constant 
and  vigilant  lookout  for  the  condition  of  the  road  in  advance  of 
the  train.*  This,  as  will  be  seen,*  is  less  than  is  required  of  pub- 
lic carriers  of  passengers.  In  one  case  ^  it  was  said  of  such  con- 
tractors running  a  construction  train:  "They  did  not  hold  them- 
selves out  as  capable  of  carrying  passengers  safely,  they  had  no 
fitrrangements  for  passenger  service,  and  they  were  not  required  to 
make  provisions  for  the  protection  of  the  road,  such  as  are  usually 
adopted  and  exacted  of  railroad  companies.  They  did  not  own  the 
road,  and  had  no  interest  in  it,  beyond  its  construction.  It  was  no 
part  of  their  duty  to  fence  it  in,  or  to  cut  away  the  bushes  or  weeds 
growing  on  its  sides."  But,  when  it  has  been  customary  to  carry 
passengers  upon  construction  trains,  persons  having  no  notice  of 
a  contrary  rule  of  the  company  have  a  right  to  assume  that  the 
conductor  had  authority  to  carry  persons  on  such  trains,  and  that 
the  granting  of  permission  by  him  fell  within  his  general  author- 
ity as  manager  of  the  train.* 

1  Murch  V,  Railroad  Corp.,  29  N.  H.  9. 

2  Slegrist  v.  Arnot,  10  Mo.  App.  197. 

8  Shoemaker  v.  Kingsbury,  12  Wall.  3G9. 

*  Post,  p.  517. 

8  Shoemalver  v.  Kingsbury,  12  Wall.  369.  And  see  Nashville  &  O.  R.  Co.  v. 
Messino,  1  Sneed  (Tenn.)  220;  Murch  v.  Railroad  Corp.,  29  N.  H.  9;  Elkins  v. 
Railroad  Co.,  23  N.  H.  275. 

«  St  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  461.      But  see  Ev- 


§    101]  WHO    ARE    CAnRIKItS    OF    PAS8ENGKR8.  491 

Who  have  been  Held  Public  Carriers. 

The  principal  classes  of  public  carriers  of  passengcrB  are  pro 
pi'ietors  of  omnibuses^  or  stagecoaclu's,'  railr(»;i(l  (•(impanirs,* 
street-car  companies,"  steamboat  companies,  and  otlier  carriers  bj 
water  who  transport  passengers,^^  including  ferrynu'n.** 

Same — Passengers  on  I'Veight  Trains,  etc. 

A  public  carrier  of  passengers  is  not  necessarily  such  as  to  a!l 
the  conveyances  operated  by  it.  Thus,  a  railroad  company,  though 
it  holds  itself  out  to  carry  passengers,  is  not  bound  to  carry  them 
upon  its  hand  cars,^^  pay  cars,^*  nor,  in  all  cases,  upon  its  freight 
trains.^"*  When  a  railroad  company  makes  other  suitable  provi- 
sion for  passenger  travel,  no  one  has  the  right  to  demand  that  he 
shall  be  allowed  to  ride  in  its  trains  devoted  exclusively  to  the 
carrying  of  freight.  If  a  person,  in  violation  of  such  rt-gulation, 
and  without  the  consent  of  the  company,  forces  himself  into  one 
of  its  freight  trains,  the  company  cannot  be  held  responsible  to 
him  in  its  character  as  a  carrier  of  passengers.  T.  <•  person  who 
thus  contributes  to  the  injury  which  he  might  sustain  while  thus 
wrongfully   in  the  train   cannot  maintain  an  action  against  the 

ansville  &  R.  R.  Co.  v.  Barnes,  137  Ind.  30G,  3G  N.  E.  1092;    Berry  v.  Rnllway 
Co.  (Mo.  Sup.)  25  S.  W.  229. 

7  Brien  v.  Bennett,  8  Car.  &  P.  724. 

8  Bretherton  v.  Wood,  3  Bred.  &  B.  54;  HoUlster  v.  Nowlon.  10  Woiid.  2:vt; 
Bennett  v.  Button,  10  N.  H.  481;  Peixottl  v.  McLaugLdin.  1  Strob.  (S.  C.)  -KS; 
Lovett  V.  Hobbs,  2  Show.  127. 

B  Hanley  v.  Railroad  Co.,  1  Edm.  Sel.  Cas.  (N.  Y.)  359;  Eaton  v.  Uallruad 
Co.,  11  AUen,  500;  McElroy  v.  Railroad  Corp..  4  Gush.  (Mass.)  400;  New 
Orleans,  J.  &  G.  N.  R.  Co.  v.  Hurst,  36  Miss.  GOO;  Union  Pao.  Ry.  Co.  v. 
Nichols,  8  Kan.  505;   Nashville  &  C.  R.  Co.  v.  Messluo.  1  Sueed  (Tenn.)  220. 

10  Holly  v.  Railroad,  Gl  Ga.  215;  Chicago  City  Ry.  Co.  v.  Miimfnnl.  •.>:  III. 
560;    Isaacs  v.  Railroad  Co.,  47  N.  Y.  122. 

11  White  V.  McDonough,  3  Sawy.  311.  Fed.  Cas.  No.  17.552;  Bonett  v.  Su-nm- 
boat  Co.,  6  O.  B.  775,  16  C.  B.  29;   Jencks  v.  Coleman.  2  Sumn.  221.  Fed.  C.a». 

No.  5,258. 
la  Le  Barron  v.  East  Boston  Ferry  Co..  11  Allen.  312;   Slimmer  v.  .Merry.  23 

Iowa,  90. 

13  Hoar  V.  Railroad  Co.,  70  Me.  65. 

14  Southwestern  R.  R.  v.  Singleton.  66  Ga.  252. 

15  Jenkins  v.  Railway  Co.,  41  Wis.  112;  Gardner  u  New  Haven  i  N.  K.  Co.. 
51  Conn.  143. 


492  CARRIERS    OF    PASSENGERS.  [Ch.  8 

company  for  such  injury.^'  It  may  be  true,  where  a  railroad  com- 
pany habitually  permits  passengers  to  travel  on  its  freight  trains, 
notwithstanding  it  may  by  regulation  prohibit  it,  that  the  company 
will  incur  the  same  responsibility  to  such  passengers  as  if  they 
were  on  the  regular  passenger  cars.*^  But  when  it  is  shown  that 
the  regulations  of  the  company  absolutely  forbid  passengers  riding 
on  freight  trains,  and  where  there  are  no  cars  attached  to  such 
trains  except  those  ordinarily  accompanying  trains  exclusively  for 
freight,  or  such  as,  by  their  appearance  and  manner  in  which  they 
are  fitted  up,  could  not  be  properly  regarded  as  inviting  passen- 
gers into  the  train,  the  burden  of  proving  that  a  person  was  jus- 
tified in  going  upon  such  train  as  a  passenger  properly  devolves 
upon  those  who  sue  for  damages  resulting  from  injuries  sustained 
by  him  while  on  such  train. ^*  The  presumption  of  law  isjthat^ger- 
sons  riding  upon  trains  of  a  railroad  carrier  which  are  ^lanif eatly 
not  designed  for  the  transportation  of  persons  are  not  lawfully 
there;  and,  if  they  are  permitted  to  be  there  by  the  consent  of 
the  carrier's  employes,  the  presumption  is  against  the  authoritv 
of  the  employes  to  bind  the  carrier  by  such  consent.  But  such  pre- 
sumption may  be  overthrown  b;^  special  circumstances;  as  where 
the  railroad  company  would  derive  a  benefit  from  the  presence  of 
drovers  upon  its  cattle  trains,  and  its  employes  in  charge  of  such 
trains  invite  or  permit  drovers  to  accompany  their  cattle,  the  pre- 
sumption against  a  license  to  the  person  thus  carried  may  be  over- 
thrown.^* By  making  a  portion  of  its  freight  trains  lawful  pas- 
senger trains,  a  railroad  company,  so  far  as  the  public  is  concerned, 
apparently  gives  the  conductors  of  all  its  freight  trains  authority 

18  Eaton  V.  Railroad  Co.,  57  N.  Y.  382;  Houston  &  T  O.  Ry.  Co.  v.  Moore, 
49  Tex.  31;  Arnold  v.  Railroad  Co.,  83  111.  273;  Thomas  v.  Railway  Co.,  72 
Mich.  355,  40  N.  W.  463;  Murcb  v.  Railroad  Cori .,  29  N.  H.  9;  Hobbs  v. 
Railway  Co.,  49  Ark.  3.57,  5  S.  W.  586;  Louisvillt  &  N.  R.  Co.  v.  Hailey,  94 
Tenn.  383,  29  S.  W.  367;  San  Antonio  &  A.  F.  Ry.  Co.  v.  Lyncb  (Tex.  Civ. 
App.)  28  S.  W.  252.    And  see  Illinois  Cent.  R.  Co.  v.  Nelson,  59  111.  110. 

IT  Houston  &  T.  C.  Ry.  Co.  v.  Moore,  49  Tex.  31;  Lucas  v.  Railway  Co..  33 
Wis.  41;  Dunn  v.  Railway  Co.,  58  Me.  187,  Alabama  G.  S.  R.  Co.  v.  Yar- 
brough,  83  Ala.  238,  3  South.  447;  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan. 
185,  10  Pac.  401;   Burke  v.  Railway  Co.,  51  Mo.  App.  491, 

18  Houston  &  T.  C.  Ry.  Co.  v.  Moore,  49  Tex.  31. 

19  Waterbury  v.  Railroad  Co.,  17  Fed.  671. 


§§    102-10^]  WHO    ARE    PAS8ENGERB.  493 

to  carry  passengers;"    and,  if  any  such  conductor  has  orders  not 

to  carry  passengers  upon  Lis  train,  they  are  in  the  nature  of  secret 

» — 

instructions  limiting  his  apparent  authority,  and  third  perBons  are 

not  bound  by  such  instructions  without  notice-!" 

WHO  ARE  PASSENGERS. 

102.  All  persons  are   passengers  who    ride  with   the  car- 

rier's assent,  express  or  implied. 
EXCEPTION — Except  those  in  the  service  of  the  carrier 
(p.  496). 

103.  Payment   of  the  transportation  is   not  necessary  to 

impose  upon   the  carrier  the  extraordinary  liabili- 
ties of  a  public  carrier  of  passengers  (p.  4'.»7). 

_A.  common  carrier..jQl-Passcngers  is  bo un^  to  exercise  extraor- 
dinary care  towards  its  passengers,  and  is  liable  for  slight  negli 
gence^^^  but  it  does  not  owe  the  same  degree  ol  i.in  to  a  person 
on  one  of  its  vehicles  or  trains  who  does  not  stand  in  the  relation 
of  a  passenger.^^  As  was  seen  in  the  discussion  of  who  are  car- 
riers of  passengers,  in  the  preceding  section,  persons  who  are  being 
transported  by  such  carriers  can  claim  the  exceptional  protection 
thrown  around  passengers  only  when  riding  on  certain  vehicles  of 
the  carrier.^*  In  this  section  nothing  will  be  said  of  the  time  at 
which  one  becomes  a  passenger.^'  The  only  questions  to  be  con 
sidered  here  are  the  persons  who  are  protected,  as  passengers, 
while  riding  on  the  trains  or  other  conveyances  of  the  carrier.  The 
most  usual  case,  of  course,  is  where  a  person  pays  his  fare,  and 

2  0  Dunn  v.  Railway  Co.,  58  Me.  187;  St.  Joseph  &  W.  R.  Co.  v.  Wheelor.  3.*. 
Kan.  185,  10  Pae.  4G1;  Brown  v.  Railroad  Co.,  38  Kau.  G34.  IG  Tac.  IMU;  Waj:- 
ner  v.  Railway  Co.,  97  Mo.  512,  10  S.  W.  48G;  Texas  &  P  Ry.  Co.  v.  Black.  87 
Tex.  160,  27  S.  W.  118. 

21  Lawson  v.  Railway  Co.,  G4  Wis.  447,  456.  24  N.  W.  618:  St.  Joseph  i  W. 
R.  Co.  V.  Wheeler,  35  Kau.  185,  10  Pac.  461;  Illinois  Cent.  R.  Co.  t.  Alley.  47 
111.  App.  307. 

22  Post,  p.  517. 

2  3  St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  35  Kan.  185,  10  Pac.  4GL 
»*  Ante,  p.  491. 
2  5  See  post,  p.  499. 


494  CARRIERS   OF    PASSENGERS.  [Ch.  8 

is  accepted  by  the  carrier  as  a  passenger,  and  carried  as  such. 
But  transportation  need  not  be  the  main  object  sought,  nor  need 
the  carrier  receive  compensation  directly  from  the  person  car- 
ried. Thus,  employes  of  the  post-oflBce  department,  carried  under 
contract  between  the  carrier  and  the  government,  or  under  a  stat- 
utory duty  imposed  upon  the  carrier;  ^®  express  messengers;  *''  ven- 
ders of  newspapers,  refreshments,  etc.;^^  a  popcorn  seller  who 
agreed  to  supply  the  passengers  with  ice  water,  as  a  part  of  the 
compensation  for  his  carriage;  ^®  a  person  leasing  a  room  on  a  boat 
for  the  sale  of  liquor  and  cigars  on  his  own  account,^" — have  all 
been  held  to  be  passengers.  And  so  have  soldiers  carried  under 
a  contract  with  the  government,^ ^  and  a  servant  whose  fare  is 
paid  by  his  master.^^  The  fact  that  the  passenger  is  traveling  on 
Sunday,  in  a  state  where  such  travel  is  illegal,  will  not  relieve  the 
carrier  of  its  liability,^ ^  And  one  who  takes  the  wrong  train  by 
mista.ke  is  nevertheless  a  passenger.^* 

There  are  certain  classes  of  persons  who  are  not  passengers 
whom  the  carrier  is  bound  to  protect,  the  same  as  those  who  are 
passengers.  The  carrier  owes  this  duty  when  it  transports  in  its 
vehicles  passengers  of  another  carrier,^"  or  furnishes  motive  power 

26  Pennsylvania  R.  Co.  v.  Price,  96  Pa.  St  256;  Nolton  v.  Railroad  Corp., 
15  N.  Y.  444;  Seybolt  v.  Railroad  Co..  95  N.  Y.  562;  Hammond  v.  Railroad 
Co.,  6  S.  C.  130;  Houston  &  T.  C.  Ry.  Co.  v.  Hampton,  64  Tex.  427;  Arrow- 
smith  V.  Railroad  Co.,  57  Fed.  165;   Collett  v   Railwaj  Co.,  16  Q.  B.  984. 

2T  Blair  v.  Railway  Co.,  66  N.  Y.  313;  Chamberlain  v.  Railroad  Co.,  11 
Wis.  238.  Cf.  Pennsylvania  Co.  v.  Wood  worth,  26  Ohio  St.  585:  Yeomans 
V.  Navigation  Co.,  44  Cal.  71;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Adams,  6  Tex. 
Civ.  App.  102,  24  S.  W.  839. 

28  Com.  V.  Vermont  &  M.  R.  Co.,  108  Mass.  7;  Yeomans  v.  Navigation  CJo., 
44  Cal.  71. 

29  Com.  v.  Vermont  &  M.  R.  Co.,  108  Mass.  7. 

80  Yeomans  v.  Navigation  Co.,  44  Cal.  71. 

81  Truex  v.  Railway  Co.,  4  Lans.  (N.  Y.)  198. 
8  2  Marshall  v.  Railway  Co.,  11  C.  B.  655. 

33  Carroll  v.  Railroad  Co.,  58  N.  Y.  126. 

84  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Rosenzwelg,  113  Pa.  St.  519,  6  Atl.  545; 
Ham  V.  Canal  Co.,  142  Pa,  St.  617,  21  Atl.  1012;  Patry  v.  Railway  Co.,  77  Wis. 
218,  46  N.  W.  56;   Lewis  v.  Canal  Co.,  145  N.  Y.  508,  40  N.  E.  248. 

SB  Foulkes  v.  Railway  Co.,  4  C.  P.  Div.  267,  5  C.  P.  Div.  157;  Reynolds  v. 
Railway  Co.,  2  Rose.  N.  P.  Ev.  735;    Dalyell  v.  Tyrer,  28  Law  J.  Q.  B.  52; 


■§§    102-103]  WHO    ARK    PASSENGERS.  406 

for  their  transportation.^"  The  rule  la  the  siinu*  as  to  the*  sfrv- 
ants  of  another  company/^  such  as  persons  in  charge  of  a  private 
car  ^®  or  of  a  palace  or  sleeping  car.* 

Trespassers  and  the  Like. 

It  is  manifest  that  if  a  person  were  stealthily  to  get  upon  th<- 
conveyance  of  a  carrier,  and  seerete  himself,  for  the  jiurpuse  of 
passing  from  one  place  to  another  without  payment  of  fare,  he  ouild 
not  recover,  if  injured.  In  such  a  case  his  wrongful  act  would  bar 
him  from  all  right  to  compensation.^"  Such  a  person  \h  a  tres- 
passer, and  the  carrier  owes  him  no  duty,  except  to  abstain  from 
willful  injury.*"  In  the  same  way,  one  who  is  attemptiog  to  de- 
fraud  a  carrier  by  the  use  of  a  false  ticket  is  a  trespasser^not  a 
passenger.*^  Thus,  one  who  is  injured  by  the  negligence  of  a  rail- 
Martin  V.  Railway  Co.,  L.  R.  3  Exch.  9;  White  v.  Railroad  Co.,  115  N.  C.  031 
20  S.  E.  191.     And  see  Skinner  v.  Railway  Co.,  5  Exch.  787. 

36  Scliopman  v.  Itailroad  Co.,  9  Cash.  24;  Galveston,  II.  &  S.  A.  Ry.  Co.  v 
Parsley,  G  Tex.  Civ.  App.  150,  25  S.  W.  64. 

8T  Zeigler  v.  Railroad  Co.,  52  Conn.  543;  Philadelphia,  W.  &  R.  R.  Co.  v. 
State,  58  Md.  372.  Cf.  Illinois  Cent.  R.  Co.  v.  Frelka,  110  111.  498;  Pennsyl- 
vania Co.  V.  Gallagher,  40  Ohio  St.  637;  In  re  Merrill,  54  VL  200;  Brown  v. 
Railroad  Co.,  40  U.  C.  Q.  B.  333;   Vose  v.  Railway  Co..  2  Hurl.  &  N.  728. 

38  Lockhart  v.  Lichtenthaler,  46  Pa.  St.  151,  159;  Cumberland  Val.  R.  Co.  v. 
Myers,  55  Pa.  St.  288.  See  Torpy  v.  Railway  Co.,  20  U.  C.  g.  B.  446;  Ij<k:i 
wanna,  &  B.  R.  Co.  v.  Chenewith,  52  Pa.  St.  382. 

♦Jones  V.  Railroad  Co.,  125  Mo.  666,  28  S.  W.  883.  Conu-a,  Ilughson  v.  Rail- 
road Co.,  2  App.  D.  C.  98. 

38  Gardner  v.  Railroad  Co.,  51  Conn.  143;  Heiidrj-x  v.  Railroad  Co.,  45  Kan. 
377,  25  Pac.  893;  Toledo,  W.  &  \V.  Ry.  Co.  v.  Brooks.  81  111.  245;  Chlr:iK'o  vS:  A. 
R.  Co.  V.  Michie,  83  111.  427;  Chicago,  B.  &  Q.  R.  Co.  v.  Mehlsack,  131  111.  61. 
22  N.  E.  812;  Bricker  v.  Railroad  Co.,  132  Pa.  St  1,  18  AU.  983;  llnase  v. 
Navigation  Co.,  19  Or.  354,  24  Pac.  238;  Coudran  t.  Railway  Co..  14  C.  C.  A. 
506,  67  Fed.  522.  And  see  Reary  v.  Railway  Co..  40  La.  .\nn.  32.  8  South. 
390;  Higley  v.  Gilmer,  3  Mont.  90. 

*o  O'Brien  v.  Railroad  Co.,  15  Gray,  20;  Austin  v.  Railway  C<j.,  I.  K  ~  Q- 
B.  442,  446;   Lygo  v.  Newbold,  9  Exch.  302. 

41  Toledo,  W.  &  W.  Ry.  Co.  v.  Begg.s,  85  111.  80;  Llllls  v.  Railway  .„..  «M 
Mo.  464;  Brown  v.  Railway  Co.,  Id.  536.  And  see  Robertiion  v.  Railroad  C. 
22  Barb.  91;  Gnlf,  C.  &  S.  F.  Ry.  Co.  v.  Campu^ll.  76  Tex.  174.  13  .^.  W.  19; 
Prince  v.  Railway  Co.,  64  Tex.  144;  McVeety  v.  Railway  Co..  46  Minn.  2<i8. 
47  N.  W.  809;  Toledo,  W.  &  W.  Ry.  Co.  v.  Brooks,  81  111.  24.");  Union  Pac  Uy. 
Co.  V.  Nichols.  8  Kan.  505;  Great  Northern  Ry.  Co.  v.  Uarrlson,  10  Exch.  37d 


496  CARRIERS   OF   PASSENGERS.  [Cb-   S 

way  company  while  traveling  on  one  of  its  trains  upon  a  pass  or 
ticket  issued  to  another  person,  and  by  its  terms  not  transferable, 
has  no  remedy  against  the  company.*"  So  where  a  person  im- 
posed himself  upon  the  conductor  as  an  express  messenger,  and 
obtained  his  consent  to  carry  him  without  fare,  it  was  held  that 
he  did  not  become  entitled  to  the  rights  of  a  passenger.*^  And 
it  has  been  held  that  a  railway  company  is  not  liable  for  the  acci- 
dental death  of  a  boy  permitted  by  the  conductor,  against  its  rules, 
to  ride  gratuitously  on  the  train  to  sell  newspapers.* * 

Employes  as  Passengers. 

An  employ^  of  a  carrier  of  passengers,  while  riding  in  connec- 
tion with  the  performance  of  his  duty,  is  not  a  passenger.*'  But 
if  the  employ^  is  traveling  on  his  own  business,  though  he  pays  no 
fare,  he  is  a_passenger.*°  Where  a  person  engaged  in  the  construc- 
tion or'^^F^air  of  a  railroad,  as  a  laborer  working  with  a  gravel 
train,  or  a  carpenter  repairing  a  bridge,  is  carried  to  and  from  his 
work  by  the  company  without  charge,  and  is  injured  in  the  course 
of  transportation  by  the  negligence  of  the  carrier  or  his  servants, 
most  cases  have  held  that  the  carrier  was  not  liable  to  such  an 
employ^  as  a  passenger.*''     But,  W'here  a  reduction  in  wages  was 

*2  Toledo,  W.  &  W.  Ry.  Ck).  v.  Beggs,  85  lU.  80;  Way  v.  Railway  Ck).,  64 
Iowa,  48,  19  N.  W.  828. 

48  Union  Pac.  Ry.  Co.  v.  Nichols,  8  Kan.  505.  And  see  Higgins  v.  Railroad 
Co.,  36  Mo.  418. 

,44  Duff  V.  Railroad  Co.,  91  Pa.  St  458;  Fleming  v.  Railroad  Co.,  1  Abb.  N. 
C.  (N.  Y.)  433.  A  man  shoveling  coal  for  his  passage  by  agreement  with  the 
fireman  was  held  not  a  passenger.  Woolsey  v.  Railroad  Co.,  39  Neb.  798, 
58  N.  W.  444. 

40  Gillshannon  v.  Railroad  Corp.,  10  Cush.  (Mass.)  228,  Ryan  v.  Railroad  Co., 
23  Pa.  St.  384;  O'Donnell  v.  Railroad  Co.,  59  Pa.  St  239;  Russell  v.  Railroad 
Co.,  17  N.  Y.  134;   Vick  v.  Railroad  Co.,  95  N.  Y.  267. 

46  Ohio  &  M.  R.  Co.  V.  Muhling,  30  111.  9;  Doyle  t  Railroad  Co.,  162  Mass. 
66,  37  N.  E.  770.     But  see  Higgins  v.  Railroad  Co.,  36  Mo.  418. 

4T  Ryan  V.  Raih-oad  Co.,  23  Pa.  St  384;  Gillshannon  v.  Railroad  Corp.,  10 
Cush.  (Mass.)  228;  Seaver  v.  Railroad  Co.,  14  Gray,  4G6;  Russell  v.  Railroad 
Co.,  17  N.  Y.  134;  Hoar  v.  Railroad  Co.,  70  Me.  65;  Tunney  v.  Railway  Co., 
L.  R.  1  C.  P.  291;  Hutchinson  v.  Railway  Cc,  0  Eng.  Ry.  Cas.  580.  Contra, 
GUlenwater  v.  Railroad  Co.,  5  Ind.  339.  But  see  Columbus  &  I.  C.  Ry.  Co. 
V.  Arnold,  31  Ind.  174,  182;  Fit2;patrick  v.  Railroad  Co.,  7  Ind.  436;  Ka^asas 
Pac  Ry.  Co.  v.  Salmon,  11  Kan.  83,  14  Kan.  512. 


§§    102-103]  WHO    ARE    PASSENGERS.  497 

made  on  account  of  the  transportation  furnished  the  emploj6^_he 
has  been  held  a  passenger.*"  To  employes  the  carrier  is  liable 
for  only  ordinary  care,  and  not  for  the  negligence  of  fellow  serv- 
ants of  the  employd  But  to  passengers  the  highest  care  is  owed, 
and  the  carrier  is  responsible  for  any  negligence  of  his  servants.*® 

Gratuitous  Passengers. 

In  one  respect  there  is  a  striking  difference  between  the  liability 
of  common  carriers  for  goods  and  the  liability  of  public  carriers 
of  passengers  for  injuries  to  a  passenger.  As  has  been  seen, 
where  goods  are  carried  gratuitously  the  carrier  is  not  regarded 
as  a  common  carrier^  but  is  simply  a  private  carrier,  and  liable, 
as  a  mandatary,  only  for  gross  negligence.""  But,  in  respect  to 
public  carriers  of  passengers,  i)ublic  policy  has  imposed  an  en- 
tirely different  rule.  Even  though  such  passengers  are  carried 
gratuitously,  if  they  have  been  accepted  by  the  carrier  as  passen- 
gers, all  the  extraordinary  liabilities  of  the  relation  attach.  Hav- 
ing admitted  him  to  the  rights  of  a  passenger,  the  carrier  is  not  per- 
mitted to  deny  that  he  owes  to  him  the  duty  which,  as  carrying 
on  a  public  employment,  he  owes  to  those  who  have  paid  him  for 
the  service."^  Wliere  a  passenger  is  carried  gratuitously,  the  lia- 
bility of  the  carrier  for  an  injury  caused  by  negligence  arises,  not 
from  any  implied  contract,  but  from  the  violation  of  a  duty  im- 
posed by  the  circumstances.''^  Having  undertaken  to  carry,  the 
duty  arises  to  carry  safely. ""  A  person  in  good  faith  accepting  an 
invitation  to  ride  free,  given  by  an  authorized  agent,  is  a  passen- 

4  8  O'Donnell  v.  Railroad  Co.,  59  Pa,  St.  239. 

49  2  Thomp.  Neg.  862,  969,  972;  Tbomp.  Carr.  Pass.  46;  O'Donnell  v.  Rail- 
road Co.,  59  Pa.  St.  239. 

60  Ante,  p.  302. 

61  Todd  V.  Railroad  Co.,  8  Allen,  18;  Com.  v.  Vermont  &  M.  R.  Co.,  108 
Mass.  7;  Littlejohn  v.  Railroad  Co.,  148  Mass.  478,  20  N.  E.  103;  Files  v. 
Railroad  Co.,  149  Mass.  204,  21  N.  E.  311;   Philadelphia  &  R.  R.  Co.  v.  Derby, 

14  How.  468;  The  New  World  v.  King,  16  How.  469;  Quimby  v.  Railroad  Co., 
150  Mass.  365,  368,  23  N.  E.  205;   Waterbury  v.  Railroad  Co.,  17  Fed.  671. 

62  Nolton  V.  Railroad  Corp.,  15  N.  Y.  444. 

68  Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  386;  Nolton  v.  Railroad  Corp., 

15  N.  Y.  144;  The  New  World  v.  King,  16  How.  469;  Perkins  v.  Railroad  Co.. 
24  N.  Y.  200;  Todd  v.  Raih-oad  Co.,  3  Allen,  21;  Jacobus  v.  Railway  Co.,  20 
Minn.  125  (Gil.  110). 

LAWBAILM. — 32 


498  CARRIERS    OF    PASSENGERS.  [Ch.   8 

ger."  But  if  he  accepts  an  invitation  to  ride  free,  given  by  an 
agent  not  having  authority  to  invite,  and  in  known  violation  of  the 
rules  of  the  carrier,  he  is  not  a  passenger."^"*  A  master  is  bound  by 
the  acts  of  his  servants  in  the  course  of  his  employment.  They  are 
deemed  to  be  the  acts  of  the  master. ''^  Thus,  a  driver_of_a_hx)rse 
car  is  an  agent  of  the  corporation  having  charge,  in  part,  of  the 
car.  If,  in  violation  of  his  instructions,  he^ invites^  girl  to  ride 
without  pay,  he  is  guilty  of  a  breach  of  his  duty  as  a  servant. 
Such  act  is  not  one  outside  of  his  duties,  but  is  an  act  within  the 
general  course  of  his  employment^  for_which  he.  is_resj)onsiblp  to 
his  master.  Ifjbhe  girl  is  injured  through  the  negligence  of  the 
driver^  she  can  hold  the  company  li^le.''^ 

The  president  of  a  railroad  company,  injured  while  riding  by  in- 
vitation on  the  line  of  another  company,  recovered  from  the  lat- 
ter for  the  damage  sustained,  though  his  carriage  was  gratuitous.'^® 
So  a  man  riding  free  under  a  custom  to  carry  "steamboat  men" 
without  charge  can  hold  the  owner  of  the  vessel  liable  for  injuries 
sustained;  °^  and  the  same  has  been  held  of  a  child  riding  with  its 
mother  under  a  rule  of  the  company  which  permitted  children  un- 
der three  to  travel  without  payment  of  fare.®° 

54  Todd  V.  Railroad  Co..  3  Allen,  18,  7  Allen,  207;  Rose  v.  Railroad  Co.,  39 
Iowa,  246;  Jacobus  v.  Railway  Co.,  20  Minn.  125  (Gil.  110);  Philadelphia  &- 
R.  R.  Co.  V.  Derby,  14  How.  468;  Wilton  v.  Railroad  Co.,  107  Mass.  lOS; 
Grand  Trunk  R.  Co.  v.  Stevens,  95  U.  S.  655.  Contra.  Kinney  v.  Railroad  Co., 
34  N.  J.  Law,  513. 

5  6  Hoar  V.  Railroad  Co.,  70  Me.  65;  Eaton  v.  Railroad  Co.,  57  N.  Y.  382; 
Houston  &  T.  C.  Ry.  Co.  v.  Moore,  49  Tex.  31;  Waterbury  v.  Railroad  Co.,  17 
Fed.  671,  and  note. 

56  Ramsden  v.  Railroad  Co.,  104  Mass.  117. 

6T  Wilton  V.  Railroad  Co.,  107  Mass.  108.  And  see  Pittsburgh,  A.  &  M.  P. 
Ry.  Co.  V.  Caldwell,  74  Pa.  St.  421;  New  Jersey  Traction  Co.  v.  Danbech  (N. 
J.  Sup.)  31  Atl.  1038. 

58  Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  468.  But  see  Chicago.  St  P., 
M.  &  O.  R.  Co.  V.  Bryant,  13  C.  C.  A.  249,  65  Fed.  969;  Thompson  v.  Railroad 
Co.,  47  La.  Ann.  1107,  17  South.  503. 

5  8  The  New  World  v.  King,  16  How.  469. 

«o  Austin  V.  Railway  Co.,  8  Best  &  S.  327,  L.  R.  2  Q.  B.  442.  In  this  case 
the  child  was  three  years  and  three  months  old,  and  should  have  paid  half 
fare,  yet  a  recovery  was  permitted. 


104]  WHEN  liabujty  attaches.  499 


WHEN  LIABILITY  ATTACHES. 

104.  A  person  becomes  entitled  to  the  exercise  of  the  ex- 
treme care  due  a  passenger  as  soon  as  he  is  ac- 
cepted by  the  carrier  for  immediate  transportation. 

As  will  be  seen  later,®^  a  carrier  is  bound  to  exercise  towards 
passengers  a  very  high  degree  of  care,  while  towards  persons  not 
passengers,  though  present  at  the  station  by  invitation,  express  or 
implied,  only  ordinary  care  is  due.  In  this  way,  the  fixing  of  the 
time  at  which  a  person  becomes  entitled  to  the  protection  due  a 
passenger  is  important,  as  it  is,  also,  in  determining  which  party 
has  the  burden  of  proving  negligence  in  actions  for  injuries  to 
passengers." 

One  becomes  a  passenger  when  he  puts  himself  into  the  care  of 
the  carrier  to  be  transported  under  a  contract,  and  is  received  and 
accepted  as  a  passenger  by  the  carrier.  There  is  hardly  ever  any 
formal  act  of  delivery  of  one's  person  into  the  care  of  the  carrier, 
or  of  acceptance  by  the  carrier  of  one  who  presents  himself  for 
transportation,  and  so  the  existence  of  the  relation  of  passenger 
and  carrier  is  commonly  to  be  implied  from  circumstances.  These 
circumstances  must  be  such  as  to  warrant  an  implication  that  the 
one  has  offered  himself  to  be  carried  on  a  trip  about  to  be  made, 
and  that  the  other  has  accepted  his  offer,  and  has  received  him  to 
be  properly  cared  for  until  the  trip  is  begun,  and  then  to  be  car- 
ried over  the  railroad,^^  or  other  line  of  transportation.  A  rail- 
road company  holds  itself  out  as  ready  to  receive  as  passengers 
all  persons  who  present  themselves,  in  a  proper  condition  and  in  a 
proper  manner,  at  a  proper  place,  to  be  carried.  It  invites  every- 
body to  come  who  is  willing  to  be  governed  by  its  rules  and  reg- 
ulations. The  question  is  whether  the  person  has  presented  him- 
self, in  readiness  to  be  carried,  under  such  circumstances,  in  ref- 
erence to  time,  place,  manner,  and  condition,  that  the  railroad  com- 
pany must  be  deemed  to  have  accepted  him  as  a  passenger.  Was 
his  conduct  such  as  to  bring  him  within  the  invitation  of  the  railroad 

81  Post,  p.  517. 

«2  See  post,  p.  517. 

•  a  Jones  v.  RaUroad  Ck).,  39  S.  C.  162,  17  S.  E.  698. 


600  CARRIERS    OF    PASSENGERS.  [Ch.  8 

company?  In  Dodge  v.  Steamship  Co."*  it  was  said  that  "when 
one  has  made  a  contract  for  passage  upon  the  vehicle  of  a  common 
carrier,  and  has  presented  himself,  at  a  proper  place,  to  be  trans- 
ported, his  right  to  care  and  protection  begins.**  In  this  statement 
it  was  assumed  that  he  would  be  in  a  proper  condition,  and  pre- 
sent himself  in  a  proper  manner.  If  he  should  present  himself 
while  doing  something  which  would  expose  himself  or  others  to 
great  danger  from  the  cars  or  engines  of  the  carrier,  he  would  not 
be  within  the  invitation  of  the  railroad  company,  and  it  would  not 
be  expected  to  accept  him  as  a  passenger.  Where  an  intending  pas- 
senger was  running  rapidly,  without  precautions  for  his  safety,  to- 
wards a  point  directly  in  front  of  an  incoming  train,  it  was  held 
that  he  did  not  put  himself  in  readiness  to  be  taken  as  a  passenger, 
and  present  himself  in  a  proper  way.®"  The  actual  purchase  of  a 
ticket,  or  the  entering  of  the  carrier's  vehicle,  is  not  necessary  to 
establish  the  relation  of  passenger  and  carrier.^®  Thus,  a  person 
who  is  injured  while  attempting  to  board  a  train  under  the  di- 
rection of  the  servants  is  a  passenger,  whether  a  ticket  has  been 
purchased  "  or  not.®®  Where  a  person  was  riding  to  a  railway 
station  in  a  sleigh  furnished  by  the  carrier,  he  was  held  a  pas- 
senger.®^ If  a  street  car  or  omnibus  stops  at  the  signal  of  an  in- 
tending passenger,  it  will  constitute  an  acceptance  of  the  person  as 
a  passenger  by  the  carrier.^®  One  awaiting  the  arrival  of  his  train 
is  entitled  to  be  protected  as  a  passenger,'^  unless  he  comes  to  the 

0*  148  Mass.  207,  19  N.  B.  873. 

«B  Webster  v.  Railroad  Co.,  161  Mass.  298,  87  N.  E.  165. 

«8  Rogers  v.  Steamboat  Co.,  86  Me.  261,  29  Atl.  1069;  Allender  v.  Railroad 
Co.,  37  Iowa,  264;  Gordon  v.  Railroad  Co.,  40  Barb.  546.  But  see  Gardner 
V.  Railroad  Co.,  51  Conn.  143;   Indiana  Cent  R.  Co.  v.  Hudelson,  13  Ind.  325. 

8  7  Warren  v.  Railroad  Co.,  8  Allen,  227. 

8  8  McDonald  v.  Railroad  Co.,  26  Iowa,  124;  Allender  v.  Railroad  Co.,  37 
Iowa,  264;  Norfolk  &  W.  R.  Co.  v.  Groseclose's  Adm'r,  88  \a.  267,  13  S.  E. 
454.     Contra,  Indiana  Cent  ^.  Co,  v.  Hudelson,  13  Ind.  325. 

89  Bulifett  V.  Railroad  Co.,  40  n!  Y.  168.  But  see  June  v.  Railroad  Co.,  153 
Mass.  79,  26  N.  E.  238. 

70  Smith  V.  Railroad  Co.,  32  Minn.  1,  18  N.  W.  827;  Brlen  v.  Bennett,  8  Car. 
&  P,  724.  And  see  McDonough  v.  Railruad  Co.,  137  Mass.  210:  Donovan  v. 
Railway  Co.,  65  Conn.  201,  32  Atl.  350. 

71  Grimes  v.  Pennsylvania  Co.,  30  Fed.  72;  Texas  &  P.  Ry.  Co.  v.  Best,  66 
Tex.  116,  18  S,  W,  224;    Gordon  v,  liailroad  Co,,  40  Barb,  546;    Caswell  v. 


§    104]  WHEN    LIABILITY    ATTACHES.  501 

station  an  unreasonable  length  of  time  before  the  departure  of  the 
train/'  And  a  person  who  enters  a  train,  with  the  carrier's  con- 
sent, before  it  is  ready  to  start,  is  a  passenger/^  Mr.  Hutchinson  ''* 
thinks  "that  the  more  intention  to  take  passage  upon  the  carrier's 
vehicle  ouj^^ht  not''  to  entitle  the  person  to  protection  as  a  passen- 
ger. In  his  opinion,  the  rule  should  be  as  follows:  "So  long,  there- 
fore, as  the  person  who  merely  purposes  to  be  carried  is  at  perfect 
liberty  to  change  his  mind,  he  is  not  a  passenger;  and,  for  any 
injury  which  he  may  sustain  through  the  negligence  of  the  carrier, 
he  must  seek  redress  as  a  stranger.  Otherwise  a  liability  would 
be  imposed  upon  the  carrier  without  compensation,  or  the  right  to 
it,  and  the  law  which  would  make  him  responsible  in  such  a  case 
for  that  utmost  care  which  is  required  of  the  carrier  of  a  passenger 
would  be  palpably  unjust."  This  does  not,  however,  seem  to  be 
the  true  rule,  since  the  extreme  care  required  of  a  public  carrier 
of  passengers  is  imposed  by  the  law  on  the  ground  of  public  pol- 
icy.'" The  carrier's  right  to  compensation  cannot  be  the  test  of 
his  liability,  since  he  must  exercise  the  same  degree  of  care  towards 
a  gratuitous  and  a  paying  passenger.''*  Mr.  Hutchinson's  view  cer- 
tainly is  not  supported  by  the  cases. 

Railroad  Corp.,  98  INIass.  194;  Wan-en  v.  Railroad  Co.,  8  Allen.  227;  Shannon 
V.  Railroad  Co.,  78  Me.  52,  2  Atl.  678.  But  see  Perry  v.  Railroad  Co.,  66  Ga. 
746,  affirming  s.  c,  58  Ga.  461. 

7  2  Heinlelu  v.  Railroad  Co.,  147  Ma.ss.  136,  16  N  E.  698.  And  see  Harris 
V.  Stevens,  31  Vt  79. 

Ts  Hannibal  &  St.  J.  R.  Co.  v.  Martin,  111  111.  219;  Lent  v.  Railroad  Co.,  120 
N.  Y.  467,  24  N.  E.  653.  And  see  Poucber  v.  Railroad  Co.,  49  N.  Y.  263; 
Gardner  v.  Railroad  Co.,  94  Ga.  538,  19  S.  E.  757. 

~*  Carr.  (2d  Ed.)  §  562. 

7B  See  post,  p.  529. 

7  6  See  ante,  p.  497;  Hutch.  Carr.  (2d  Ed.)  |  566.  And  see  Green  v.  Railroad 
Co.,  41  Iowa,  410. 


^C--^=XW  2<^  /^  ^  /^ 


602  CARRIERS    OF    PASSENGERS.  [Ch.  8 


EIGHTS  AND  LIABILITIES. 

105.  The  rights  and  liabilities  of  a  public  carrier  of  passen- 

gers  \vill  be  discussed  under  the  following  heads: 

(a)  Duty  to  accept  passengers  (p.  502). 

(b)  Duty  to  furnish  equal  accommodations  (p.  505). 

(c)  Right  to  compensation  (p.  507). 

(d)  Ticket  as  evidence  of  passenger's  rights  (p.  610). 

(e)  Right  to  make  regulations  (p.  514). 

(f)  Liability  for  delay  (p.  516). 

(g)  Injuries  to  passengers  (p.  517). 

(h)  Contracts  limiting  liability  (p.  529). 

SAME— DUTY  TO  ACCEPT  PASSENGERS. 

106.  A  public  carrier  of  passengers  is  bound  to  accept  for 

transportation  all  proper  persons  -who  apply,  so 
long  as  he  has  room  in  his  vehicle,  and  they  are  able 
and  willing  to  pay  for  the  transportation. 

Who  may  he  Refused. 

Those  who  hold  themselves  out  as  public  carriers  of  passengers 
are  bound  to  take  all  persons  who  may  apply  for  transportation 
over  their  lines.''^  They  cannot  refuse  to  carry  persons  who  come 
part  way  over  rival  lines,  though  they  may  give  preference  to  pas- 
sengers received  over  lines  with  which  they  have  arrangements  for 
through  transportation.^®  A  carrier  is  not  bound  to  carry  all  per- 
sons at  all  times,  or  it  might  be  utterly  unable  to  protect  itself  from 
ruin.     There  is  no  obligation  to  carry  one  whose  ostensible  business 

T7  West  Chester  &  P.  R.  Co.  v.  Miles,  55  Pa.  St.  209;  Sanford  v.  Railroad 
Co.,  2  Phlla.  (Pa.)  107;  Day  v.  Owen,  5  Mich.  520;  HoIIister  v.  Nowlen,  19 
Wend.  234;  Hannibal  R.  Co.  v.  Swift,  12  Wall.  263;  SaltonstaU  v.  Stockton, 
Taney,  11,  Fed.  Cas.  No.  12,271;  Indianapolis,  P.  &  C.  Ry.  Co.  v.  Rinard,  46 
Ind.  293;  Lake  Erie  &  W.  R.  Co.  v.  Acres,  108  Ind.  548,  9  N.  E.  453;  Mershon 
V.  Hobensack,  22  N.  J.  Law,  872;  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135, 
17  Atl.  1052. 

»•  Bennett  v.  Dutton,  10  N.  H.  481. 


§  106]  DUTY  TO  ACCEPT  PASSENGERS.  503 

is  to  injure  the  line;  ■"  one  fleeing  from  justice;  one  going  upon  tlie 
vehicle  to  assault  a  passonger,^^  commit  larceny  or  robbery,  or  to 
interfere  with  the  proper  regulations  of  the  company,  or  to  commit 
any  crime.  Nor  is  a  carrier  bound  to  carry  persons  who  are 
drunk  ®^  and  disorderly,®^  or  infected  with  contagious  diseases.*' 
The  person  must  be  upon  lawful  and  legitimate  business.  Hence  a 
carrier  is  not  bound  to  accept  persons  who  intend  to  use  his  vehicle 
for  the  purpose  of  gambling.'*  And  a  passenger  may  be  refused 
if  his  arrival  at  the  place  of  destination  would  excite  violence  and 
disorder.®' 

Same — Using  Vehicle  for   Traffic. 

A  carrier  of  passengers  is  not  bound  to  furnish  traveling  con- 
veniences for  those  who  wish  to  engage  on  their  vehicles  in  the 
business  of  selling  books,  papers,  or  articles  of  food,  or  in  the  busi- 
ness of  receiving  and  distributing  parcels  or  baggage,®*  nor  to  per- 
mit the  transaction  of  this  business  in  their  vehicles,  when  it  in- 
terferes with  their  own  interests.  If  a  profit  may  arise  from  such 
business,  the  benefit  of  it  belongs  to  the  company,  and  they  are 
entitled  to  the  exclusive  use  of  their  vehicles  for  such  purposes.®^ 
A  steamboat  company  or  a  railroad  company  may  well  allow  an 
individual  to  open  a  restaurant  or  a  bar  on  their  conveyance,  or 

T9  Jencks  v.  Coleman,  Fed.  Cas.  No.  7,258;   Bennett  v.  Button,  10  N.  H.  481. 

80  Bennett  v.  Button,  10  N.  H.  481. 

81  Putnam  v.  Railroad  Co.,  55  N.  Y.  108;  Pittsburg  &  O.  R.  Co.  v.  Pillow, 
76  Pa.  St.  510.  But  not  slight  Intoxication.  Pittsburg,  C.  &  St.  L.  R.  Co.  v. 
Vandyne,  57  Ind.  576;  Putnam  v.  Railroad  Co.,  55  N.  Y.  108,  114;  Milliman 
v.  Railroad  Co.,  66  N.  Y.  642. 

82  Vinton  v.  Railroad  Co.,  11  Allen,  304;  Pittsburg  &  O.  B.  Co.  v.  Pillow, 
76  Pa,  St.  510;  Pittsburgh,  F.  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St:  512; 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Vandyne,  57  Ind.  576;  Flint  v.  Railroad  Co., 
34  Conn.  554. 

88  Thurston  v.  Railroad  Co.,  4  Dill.  321,  Fed.  Cas.  No.  14,019. 

84  Id. 

SB  Pearson  v.  Duane,  4  WalL  605.  But  see,  as  to  h  prostitute,  Brown  v. 
Railroad  Co.,  7  Fed.  51. 

88  See  ante,  p.  389. 

87  Jencks  v.  Coleman,  2  Sumn.  221,  Fed.  Cas.  No.  7.258;  Com.  v.  Power, 
7  Mete.  (Mass.)  596;  New  Jersey  Steam  Nav.  Co.  v  Merchants'  Bank,  6  How. 
344;  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Cas.  No.  1.030;  Barney  v.  Steam- 
boat Co.,  67  N.  Y.  301;    Smallmau  v.  Whitter,  87  111.  545. 


504  CARRIERS    OF    PASSENGERS.  [Ch.  8 

to  do  the  business  of  boot  blacking,  or  of  peddling  books  and  pa- 
pers. This  individual  is  under  their  control,  subject  to  their  reg- 
ulation, and  the  business  interferes  in  no  respect  with  the  orderly 
management  of  the  vehicle.  But,  if  every  one  that  thinks  fit  can 
enter  upon  the  performance  of  these  duties,  the  control  of  the  vehi- 
cle and  its  good  management  would  soon  be  at  an  end.  The  cars 
or  boats  are  those  of  the  carrier,  and  exclusively  his,  for  this  pur- 
pose. The  sale  or  leasing  of  these  rights  to  individuals,  and  the 
exclusion  of  others  therefrom,  come  under  the  head  of  reasonable 
regulations,  which  the  courts  are  bound  to  enforce.  The  right  of 
transportation,  which  belongs  to  all  who  desire  it,  does  not  carry 
with  it  a  right  of  traffic  or  of  business.  One  violating  such  a  rule 
of  the  carrier  may  be  ejected  from  the  carrier's  vehicle.®* 

Insufficient  Accommodations. 

Carriers  of  passengers  are  not  bound  to  receive  any  one  for  trans- 
portation after  their  accommodations  are  exhausted  and  they  have 
no  more  room.*®  But,  if  the  carrier  sells  tickets  to  more  persons 
than  he  can  carry,  he  is  liable  for  breach  of  his  contract.®"  So,  if 
passengers  in  excess  of  the  accommodations  are  received  without 
condition,  or  notice  of  the  carrier's  inability  to  make  adequate  pro- 
vision for  their  transportation,  he  is  liable.®^ 

Prepayment  of  Fare. 

Carriers  are  bound  to  carry  only  for  those  who  can  and  will  pay 
for  their  transportation.  This  payment  may  be  demanded  in  ad- 
vance, as  a  condition  of  accepting  a  person  as  a  passenger.®" 

8«  The  D.  R.  Martin,  11  Blatchf.  233,  Fed.  Cas.  No.  1,030. 
8  8  Chicago  &  N.  W.  R.  Co.  v.  CarroU,  5  111.  App.  200;    Evansville  &  C.  R. 
Co.  V.  Duncan,  28  Ind.  441. 

80  The  Pacific,  1  Blatchf.  569,  Fed.  Caa.  No.  10,643;  Hawcroft  v.  Railway 
Co.,  8  Eng.  Law  &  Eq.  362. 

81  Evansville  &  C.  R.  Co.  v.  Duncan,  28  Ind.  441.  A  cairier  Is  bound  to  fur- 
nish seats  for  all  passengers.  On  his  failure  to  do  so,  the  passenger  may  re- 
fuse to  surrender  his  ticket,  and  leave  the  train,  but  cannot  insist  on  being 
carried  if  he  retains  his  ticket.  Hardenbergh  v.  Railway  Co.,  39  Minn.  3,  38^ 
N.  W.  625;  Memphis  &  C.  R.  Co.  v.  Benson.  85  Tenn.  627,  4  S.  W.  5;  Davis 
V.  Railroad  Co.,  53  Mo.  317;  St.  Louis,  I.  M.  &  &.  Ry.  Co.  v.  Leigh,  45  Ark.  368. 
Cf.  Louisville,  N.  O.  &  T.  R.  Co.  v.  Patterson,  69  Miss.  421,  13  South.  697. 

»«  Day  V.  Owen,  5  Mich.  520;  Tai-beU  v.  Railroad  Co.,  34  Cal.  616;  Nash- 
ville &  C.  R.  Co.  V.  Messino,  1  Sneed.  220;    Ker  v.  Mcuntain,  1  Esp.  27.     A 


§    107]  DUTY    TO   FURNISH    EQUAL    ACCOMMODATIONS,  605 

Waiver  of  Right  to  Refuse. 

A  carrier  should,  in  the  first  place,  refuse  to  sell  tickets  to  per- 
sons whom  it  desires  and  has  the  right  to  refuse  to  carry,  and 
should  exclude  them  if  they  attempt  to  enter  the  vehicle  without 
tickets.  If  a  ticket  has  been  inadvertently  sold  to  such  person, 
and  the  company  desires  to  rescind  the  contract  for  trans])orta 
tion,  it  should  tender  a  return  of  the  money  paid  for  the  ticket. 
If  it  does  not  do  this,  the  ticket  holder  may,  under  any  circum- 
stances, recover  the  amount  he  paid  for  the  ticket.®'  If  the  car- 
rier, at  the  time,  knew  facts  which  would  justify  a  refusal  to  carry, 
selling  a  ticket  to  such  a  person  is  a  waiver  of  the  right  to  refuse 
him." 

SAME— DUTY  TO  FURNISH  EQUAL  ACCOMMODATIONS. 

107.  A  public  carrier  of  passengers  is  bound  to  furnish 
equal  accomniodations  to  all  persons  under  like 
circumstances.  But  he  may  make  reasonable  dis- 
criminations, according  to : 

(a)  Sex. 

(b)  Kind  of  ticket. 

(c)  Length  of  journey. 

Discriminations  against  Colored  Passengers. 

Whatever  rules  tend  to  the  comfort,  order,  and  safety  of  the 
passengers,  carriers  are  fully  authorized  to  make,  and  are  amply 
empowered  to  enforce  compliance  therewith.  But  such  rules  and 
regulations  must  always  be  reasonable,  and  uniform  in  respect  to 
persons.®"     A  railroad  company  cannot  capriciously  discriminate 

strict  tender  of  fare  Is  not  necessary.  Day  v.  Owen,  supra;  Nashville  &  C.  R. 
Co.  V.  Messino,  supra;  Tarbell  v.  Railroad  Co..  supra;  Pickford  v.  Railway 
Co.,  8  Mees.  &  W.  372. 

»3  Thurston  v.  Raih-oad  Co.,  4  Dill.  321,  Fed.  Cas.  Nc.  14,019. 

94  Hannibal  &  St.  J.  R.  Co.  v.  Swift,  12  Wall.  262;  Pearson  v.  Duane,  4 
Wall.  G05;  Tarbell  v.  Railroad  Co.,  34  Cal.  616.  But  see  Com.  v.  Power,  7 
Mete.  (Mass.)  596;  The  D.  R.  Martin,  11  Blatchf.  233.  Fed.  Cas.  No.  4,092. 

9  5  When,  therefore,  a  passenger  who,  under  the  rules  of  the  company,  is 
entitled  to  a  berth  upon  payment  of  the  usual  taie,  and  to  whom  no  personal 
objection  attaches,  enters  the  company's  sleeping  cai  at  a  proper  time  for  the 


506  CARRIERS    OF  PASSENGERS.  [Ch.   8 

between  passengers  on  account  of  their  nativity,  color,  race,  social 
position,  or  their  political  or  religious  beliefs.^®  Whatever  discrim- 
inations are  made  must  be  on  some  principle  or  for  some  reason 
that  the  lave  recognizes  as  just  and  equitable  and  founded  in  good 
public  policy.^''  But  a  carrier  may  provide  separate  accommoda- 
tions for  white  and  colored  passengers,  and,  if  the  accommodations 
provided  for  the  colored  passenger  are  substantially  equal  to  those 
provided  for  white  passengers,  then  there  is  no  unjust  discrimina- 
tion.^* 

Classification   of  Passengers. 

Regulations  of  a  carrier  which  make  differences  in  the  accommo- 
dations furnished  depend  upon  a  reasonable  classification  of  the 
passengers  are  valid.®'  Thus,  a  carrier  may  provide  a  separate 
car  for  ladies,  or  for  ladies  and  their  male  escorts,  and  exclude  all 

purpose  of  procuring  accommodations,  and,  In  an  orderly  and  respectful  rnan- 
ner,  applies  for  a  berth,  offering  or  tendering  the  customary  price  therefor,  the 
company  is  boimd  to  furnish  it,  provided  it  has  a  vacant  one  at  Its  disposal. 
Nevin  v.  Car  Co.,  106  111.  222.  As  to  nature  of  business  carried  on  by  sleep- 
ing-car companies,  see  ante,  p.  262,  "Innkeepers."  A  railroad  company  can- 
not, upon  any  pretense,  except  of  wrong  or  misconduct  on  the  part  of  the 
person  excluded,  grant  to  one  hackman,  or  line  of  hacks  and  omnibuses,  the 
exclusive  right  to  occupy  a  place  upon  Its  depot  grounds;  nor  can  it  set  aside  the 
most  favorable  part  of  such  grounds  to  a  hack  and  omnibus  company  engaged 
in  carrying  passengers  and  freight,  to  the  exclusion  of  others  engaged  in  the 
same  business.  A  grant  of  such  privilege  is  an  unjust  discrimination,  tending 
to  defeat  competition,  and  to  create  a  monopoly.  Kalamazoo  Hack  &  Bus  Co.  v. 
Sootsma,  84  Mich.  194,  47  N.  W.  667.  Montana  U.  Ry.  Co.  v.  Langlois,  9 
Mont.  419.  24  Pac.  209.  Contra,  Old  Colony  R  Co.  v.  Tripp,  147  Mass.  35, 
17  N.  E.  89;  Griswold  v.  Webb,  16  R.  I.  649,  19  Atl.  143;  In  re  Beadell,  2  C. 
B.  (N.  S.)  509;   In  re  Painter,  Id.  702;    Hole  v.  Digby.  27  Wkly.  Rep.  884. 

8  8  Coger  v.  Packet  Co.,  37  Iowa,  145;  Central  R.  Co.  v.  Green,  86  Pa.  St 
427;   West  Chester  R.  Co.  v.  Miles,  55  Pa.  St.  209. 

9T  Chicago  &  N.  W.  Ry.  Co.  v.  Williams,  55  111.  185.  But  see  Goines  v. 
McCandless,  4  Phila.  255. 

88  Chicago  &  N.  W.  Ry.  Co.  v.  Williams,  55  111.  185;  Houck  v.  Railway  Co., 
38  Fed.  226;  The  Sue,  22  Fed.  843;  Logwood  \.  Railroad  Co.,  23  Fed.  318; 
Murphy  v.  Railroad  Co.,  Id.  637:  Anderson  v.  Railroad  Co.,  62  Fed.  46.  And 
Bee  Gray  v.  Railroad  Co.,  11  Fed.  687.  But  see  Washington,  A.  &  G.  R.  Co. 
V.  Brown,  17  Wall.  445. 

»»  Chicago  &  N.  W.  Ry.  Co.  v.  Williams,  55  111.  i85. 


§    108]  RIGHT    TO    COMPENSATION.  o07 

other  passengers.^""  A  carrier  may  properiy  provide  more  Inx- 
urious  accommodations  to  passengers  traveling  on  first-class  tickets 
than  to  others/"^  or  to  persons  bound  for  distant  points.^*** 

SAME— RIGHT  TO  COMPENSATION. 

108.  A  public  carrier  of  passengers  is  entitled  to  a  reason^ 

able  compensation,  -which  may  be  collected  in  ad-    Af\/\J^^ 
vance.     The   purchase   of  a  ticket   before   entering-  ^^---^^ 
the  carrier's  vehicle  may  be  required,  if  a  sufficient 
opportunity  to  do  so  is  afforded  the  passenger. 

A  carrier  of  passengers  is  entitled  to  a  reasonable  compensa- 
tion,"^ which  may  be  regulated  by  statute  "*  or  by  usage."'^  The 
carrier  must  not  make  unreasonable  discriminations  between  dif- 
ferent passengers,^"^  The  principles  on  which  these  rules  depend 
are  the  same  as  for  carriers  of  goods,  and  have  already  been  dis- 
cussed."''    In  payment  of  his  fare,  a  passenger  is  not  required  to 

100  Chicago  «&  N.  W.  Ry.  Ck).  v.  Williams,  supra;  Peck  v.  Railroad  Co..  70 
N.  Y.  587;  Bass  v.  Railway  Co.,  3G  Wis.  450,  39  Wis.  630,  and  42  Wis.  654;  Mem- 
phis &  C.  R.  Co.  V.  Benson,  85  Tenn.  627,  4  S.  W.  5;  Brown  v.  Railroad  Co., 
7  Fed.  51.  And  see  Marquette  v.  Railroad  Co..  33  Iowa,  562.  SufDcient  ac- 
commodations for  other  passengers  must  be  provided  elsewhere.  Bass  v. 
Railway  Co.,  supra. 

101  Wright  v.  Railway  Co.,  78  Cal.  360,  20  Pac.  740.  St  Louis  &  A.  T.  Ry. 
Co.  V.  Hardy,  55  Ark.  134,  17  S.  W.  711;  Nolan  v.  RaUroad  Co.,  41  N.  Y.  Super. 
Ct.  541. 

102  St.  Louis  &  A.  T.  Ry.  Co.  v.  Hardy,  55  Ark.  134.  17  S.  W.  711. 

103  Spofford  V.  Railroad  Co.,  128  Mass.  326;  McDuffee  v.  Railroad  Co.,  52  N. 
H.  430;  Johnson  v.  Railroad  Co.,  16  Fla.  623. 

104  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155;  Pelk  v.  Railway  Co.,  Id. 
164;  Ruggles  v.  Illinois,  108  U.  S.  526,  2  Sup.  Ct.  832;  Stone  v.  Ti-ust  Co., 
116  U.  S.  307,  6  Sup.  Ct.  334,  388,  1191;  Dow  v.  Beidelman,  125  U.  S.  680,  8 
Sup.  Ct.  1028;  Chicago.  M.  &  St.  P.  Ry.  Co.  v.  Minnesota.  134  U.  S.  418,  10 
Sup.  Ct.  462,  702;  Georgia  Railroad  &  Banking  Co.  v.  Smith,  128  U.  S.  174. 
9  Sup.  Ct.  47;  St.  Louis  &  S.  F.  Ry.  v.  GiU,  54  Ark.  101,  15  S.  W.  18. 
And  see  Wellman  v.  Railway  Co.,  83  Mich.  592.  47  N.  W.  489. 

10  B  Spoflford  V.  Railroad  Co.,  128  Mass.  326. 

loe  Johnson  v.  Railroad  Co.,  16  Fla.  623;    Atwater  v.  Railroad  Co.,  48  N.  J. 
Law,  55,  2  Atl.  803;  Spofford  v.  Railroad  Co.,  128  Mass.  326. 
lOT  Ante,  p.  335. 


508  CARRIERS    OF    PASSENGERS.  [Cll.   8 

tender  the  exact  amount.  The  carrier  must  furnish  change  in  a 
reasonable  amount.^***  As  has  been  stated/"'  the  carrier  is  en- 
titled to  payment  in  advance,  if  it  is  demanded.  A  regulation  re- 
quiring passengers  to  present  tickets  before  entering  the  cars  or 
other  vehicle  is  a  valid  one.^^°  When  a  passenger  has  purchased 
a  ticket,  the  carrier  may  require  its  surrender,^^^  but  the  passenger 
can  demand  a  check,  or  other  evidence  that  he  has  paid  his  fare.^^^ 
If  a  passent;  T  loses  his  ticket,  he  must  pay  his  fare  again,^^*  after 
a  reasonable  opportunity,  is  given  to  find  the  ticket.^ ^* 

Higher  Fare,  H^en  Paid  on  Train. 

A  regulation  of  a  railroad  company  that  all  passengers  who  shall 
purchase  tickets  before  entering  the  cars  shall  be  entitled  to  a  small 
discount  from  the  advertised  rates  of  fare,  but,  if  such  ticket  is  not 
purchased,  the  full  rate  of  fare  shall  be  charged,  is  a  reasonable 

108  Barrett  v.  Railway  Co.,  81  Cal.  296,  22  Pac.  859.  Cf.  Pulton  v.  Railway 
Co.,  17  U.  C.  Q.  B.  428;   Curtis  v.  Railway  Co..  94  Ky.  573,  23  S.  W.  363. 

109  Ante,  p.  504. 

110  Dickerman  v.  Depot  Co.,  44  Minn.  433,  46  N.  W.  907.  • 

111  Illinois  Cent.  R.  Co,  v.  Whittemore,  43  111  420;  Havens  \ .  Railroad  Co., 
28  Conn.  69,  88;  Northern  R.  Co.  v.  Page,  22  Barb.  130;  Van  Dusan  v.  Rail- 
way Co.,  97  Mich.  439,  56  N.  W.  848.  If  the  can-ier's  servant  refuses  to  trans- 
port a  passenger  on  the  ticket  presented  by  the  latter,  there  la  no  right  to  take 
up  the  ticket,  and  compel  the  passenger  to  pay  fare.  The  passenger  has  a 
right  to  retain  the  rejected  ticket     Van  Kirk  v.  Railroad  Co.,  76  Pa.  St.  66. 

112  Illinois  Cent  R.  Co.  v.  Whittemore,  43  111.  420;  State  v.  Thompson,  20 
N.  H.  250.      But  see  Wheeler,  Carr.  141, 

iisstandish  v.  Steamship  Co.,  Ill  Mass.  512;  Cresson  v.  Railroad  Co.,  11 
Phila.  (Pa.)  597;  Crawford  v.  Railroad  Co.,  26  Ohio  St.  580;  Atwater  v.  Rail- 
road Co.,  48  N.  J,  Law,  55,  2  Atl,  803;  International  &  G,  N.  R.  Co,  v,  Wilkes, 
G8  Tex.  617,  5  S.  W.  491.  And  see  Cooper  v.  Railway  Co.,  4  Exch.  Div.  88. 
But  see  Pullman  Palace  Car  Co.  v.  Reed,  75  111.  125. 

11*  Maples  V.  Railroad  Co..  38  Conn.  557;  Knowles  v.  Railroad  Co.,  102  N. 
C.  59.  9  S.  E.  7;  International  &  G.  N.  R.  Co.  v.  Wiikes,  68  Tex.  617,  5  S.  W. 
491.  The  carrier  has  no  right  to  Imprison  a  passenger  for  his  refusal  to  pay 
fare.  Lynch  v.  Railroad  Co.,  90  N.  Y.  77.  As  to  a  lien  on  the  passenger's 
baggage,  see  ante,  p,  343,  If  It  Is  custom  of  carriers  by  steamboat  to  collect 
passage  tickets  as  passengers  are  leaving  boat  and  passenger  attempts  to 
land  without  ticket,  alleging  that  he  has  lost  It,  carriers  have  right  to  detain 
him  for  a  reasonable  time,  to  inquire  on  spot  Into  circumstances  of  case. 
Standlsh  v.  Steamship  Co.,  Ill  Mass.  512. 


§    108]  RIGHT    TO    COMPENSATION.  500 

one,*"  and  in  no  way  violates  a  statute  which  provides  that  rates 
shall  be  the  same  for  all  persons  between  the  same  points.^*®  Such  a 
regulation  tends  to  protect  the  corporation  from  the  frauds  of  its 
conductors,  and  from  the  inconvenience  of  collecting  fares  upon  its 
trains  in  motion,  and  it  imposes  no  hardship  whatever  upon  travel- 
ers. But  if  the  corporation  refuses  to  furnish  the  tickets,  and  thus 
fails  to  do  what  is  plainly  implied  by  the  adoption  and  publication 
of  the  rule,  passengers  are  not  bound  by  the  rule,  and  the  addi- 
tional sum  cannot  be  demanded.^"  It  has  been  held  in  a  few 
cases  that  the  offer  to  carry  passengers  at  a  less  rate  if  tickets  were 
procured  was  in  the  nature  of  a  proposal,  like  other  proposals  to 
enter  into  a  contract,  dependent  for  its  acceptance  upon  the  com- 
pliance with  its  condition;  that  it  might  be  withdrawn  at  any 
time;  that  closing  the  office  for  the  sale  of  tickets  was  such  with- 
drawal; and  that  the  offer  carried  with  it  no  obligation  on  the 
part  of  the  company  to  open  an  office,  or  to  keep  such  office  open 
for  any  length  of  time,  it  being  merely  an  offer  to  make  the  de- 
duction if  the  ticket  should  be  procured.^ ^^  But  in  a  much  larger 
number  of  cases,  and  with  much  better  reason,  it  has  been  held 
that  where  the  railroad  undertakes  to  conduct  its  business  by 
means  of  tickets,  whether  it  requires,  as  it  may,  the  possession  of 
a  ticket  as  a  prerequisite  to  entering  its  cars,  or  whether  it  of- 
fers a  deduction  from  the  regular  or  advertised  rate  to  one  who 
shall  procure  a  ticket  in  advance,  it  is  a  part  of  its  duty  to  afford 
a  reasonable  opportunity  to  obtain  its  tickets.^ ^®  Under  the  rule 
announced  by  these  cases,  it  is  absolutely  necessary  that  the  office 

115  Swan  V.  Railroad  Co.,  132  Mass.  116;  St.  Louis.  A.  &  T.  H.  R.  Co.  v. 
South,  43  111.  176;  Illinois  Cent.  R.  Co.  v.  Johnson,  67  111.  312;  Indianapolis. 
P.  &  C.  Ry.  Co.  V.  Rinai-d,  46  Ind.  293;  Du  Lauians  v.  Railroad  Co.,  15  Minn. 
49  (Gil.  29). 

118  Bordeaux  v.  Railway  Co.,  8  Hun,  579. 

117  Jeff ersonville  R.  Co.  v.  Ro.irers,  28  Ind.  L 

118  Crocker  v.  Railroad  Co.,  24  Conn.  249;  Bordeaux  v.  Erie  Railway  Co., 
8  Hun,  579.  And  see  Snellbaker  v.  Railroad  Co.,  94  Ky.  597,  23  S.  W.  509; 
Lake  Erie  &  W.  R.  Co.  v.  Quisenbeny,  48  111.  App.  338. 

119  St  Louis,  A.  &  T.  H.  R.  Co.  v.  South,  43  lU.  176;  Chicago  &  A.  R.  Co. 
V.  Flagg,  Id,  364;  Illinois  Cent  R.  Co.  v.  Johnson,  67  IlL  812;  Jeffersonvillo 
R.  Co.  V.  Rogers,  28  Ind.  1;  Indianapolis,  P.  &  C.  Ry.  Co.  v.  Rinard,  46  Ind. 
293;   Du  Laurans  v.  Railroad  Co..  15  Minn.  49  (Gil.  29);    Swan  v.  Railroad  Co., 


510  CARRIERS    OF   PASSENGERS.  [Ch.   8 

should  be  open  for  business  a  suflScient  time  before  the  departure 
of  the  train  to  enable  passengers  to  procure  their  tickets,  receive 
and  count  their  change,  if  any,  and  prepare  to  board  the  train,  with- 
out unnecessary  interference  with  each  other.  But  this  does  not 
require  that  the  office  shall  remain  open  up  to  the  instant  the  train 
moves  off.  The  question  is,  might  the  passenger  have  procured  a 
ticket  within  a  reasonable  time  before  the  departure,  and  not  up 
to  the  very  moment  when  the  wheels  began  to  move.^^°  When  a 
train  is  late  it  is  sufficient  if  the  ticket  office  was  open  a  reason- 
able time  before  the  hour  at  which  the  train  was  advertised  to  start. 
For  it  would  not  be  a  reasonable  rule  to  require  ticket  sellers  to 
be  at  their  posts,  sometimes  for  hours,  after  the  time  when  every- 
thing at  the  station  had  been  arranged  for  departure.^ '^ 


J^      SAME— TICKET  AS  EVIDEWC 


CE  OF  PASSENGER'S  RIGHTS. 

109.  A  ticket  is  only  evidence  of  the  carrier's  contract 
with  the  passenger.  But,  between  the  passeng-er  and 
the  conductor  or  similar  agent,  the  ticket  is  con- 
clusive on  the  passenger. 

A  passenger  ticket  is  not  the  contract  between  the  carrier  and 
the  passenger.  It  is  only  evidence  of  such  contract,  and  a  receipt 
to  show  the  payment  of  fare.^^^  Not  being  the  contract,  its  terms 
may  be  varied  by  parol  evidence  to  show  what  the  real  contract 
with  the  passenger  was.^^^     But,  between  the  passenger  and  the 

132  Mass.  116;    Everett  v.  Railway  Co.,  G9  Iowa,  15,  28  N.  W.  410;    Cross  v. 
Railway  Co.,  56  Mo.  App.  624. 

120  Everett  v.  Railway  Co.,  69  Iowa,  15,  28  N.  W.  410. 

121  Swan  V.  Railroad  Co.,  132  Mass.  116;  St.  Louis  A.  &  T,  H.  R.  Co.  v. 
South,  43  111.  176.  Contra,  under  a  statute  requiring  ticket  office  to  be  kept 
open  "at  least  one  hour  prior  to  the  departure  of  each  passenger  train."  Porter 
V.  Railroad  Co.,  34  Barb.  353. 

122  Rawson  V.  Railroad  Co.,  48  N.  Y.  212;  Quimby  v.  Vanderbilt,  17  N.  Y. 
306;  Boice  v.  Railroad  Co.,  61  Barb.  611;  Barker  v.  Coflin,  31  Barb.  556; 
Elmore  v.  Sands,  54  N.  Y.  512;  Johnson  v.  Railroad  Corp.,  46  N.  H.  213; 
Gordon  v.  Railroad  Co.,  52  N.  H.  596;  State  v.  Overton,  24  N.  J.  Law,  435; 
Henderson  v.  Stevenson,  L.  R.  2  H.  L.  Sc.  470. 

128  Van  Busklrk  v.  Roberts,  31  N.  Y.  661;  Northern  R.  Co.  v.  Page,  22  Barb. 
130;  Barker  v.  Coflin.  31  Barb.  556;   Nevlns  v.  Steaaiboat  Co..  4  Bosw.  (N.  Y.} 


§    100]  TICKET    AS    EVIDENCE    OF    PASSENGEr's    RIGHTS.  511 

conductor  or  agent  of  the  carrier  to  whom  the  ticket  is  presented 
as  evidence  of  the  right  to  transportation,  the  ticket  and  its  terms 
are  conclusive  on  the  passenger.^^*     When  a  wrong  ticket  has  been 

225;  Rawson  v.  Railroad  Co..  48  N.  Y.  212;  Elmore  v.  Sands,  54  N.  Y.  512; 
Brown  v.  Railroad  Co.,  11  Cush.  97;  Johnson  v.  Railroad  Corp.,  40  N.  H.  213; 
Crosby  v.  Railroad  Co.,  69  Me.  418;    Bnrnbam  v.  Railway  Co.,  03  Me.  298. 

124  Mosber  v.  Railroad  Co.,  23  Fed.  320;  Hall  v.  Railroad  Co.,  15  Fed.  57; 
Petrie  v.  Railroad  Co.,  42  N.  J.  Law,  449;  Atcbison,  T.  &  S.  F.  R.  Co.  v. 
Gants,  38  Kan.  608,  17  Pac.  54;  McKay  v.  Railroad  Co.,  34  W.  Va.  65,  11  S. 
B.  737;  Rose  v.  Railroad  Co.,  100  N.  C.  168,  11  S.  E.  526.  "It  may  be  unpleas- 
ant to  a  passenger  who  has  once  paid  to  submit  to  an  additional  exaction. 
But,  unless  the  law  holds  him  to  do  this,  there  arises  at  once  a  conflict  of 
rights.  His  right  to  transportation  is  no  greater  than  the  right  and  duty  of 
the  conductor  to  enforce  reasonable  rules,  and  to  conform  to  reasonable  and 
settled  customs  and  practices,  in  order  to  prevent  the  company  from  being  de- 
frauded; and  a  forcible  collision  might  ensue.  The  two  supposed  rights  are  in 
fact  inconsistent  with  each  other.  If  the  passenger  has  an  absolute  right  to 
be  carried,  the  conductor  can  have  no  right  to  require  the  production  of  a 
ticket  or  the  payment  of  fare.  It  Is  more  reasonable  to  hold  that,  for  the 
time  being,  the  passenger  must  bear  the  burden  which  results  In  his  failure 
to  have  a  proper  ticl<ot.  *  *  *  It  Is  no  great  hardship  upon  the  passenger 
to  put  upon  him  the  duty  of  seeing  to  it  in  the  first  instance  that  he  receives 
and  presents  to  the  conductor  a  proper  ticket  or  check;  or,  If  he  falls  to  do 
this,  to  leave  him  to  his  remedy  against  the  company  for  a  breach  of  his  con- 
tract." Bradshaw  v.  Railroad  Co.,  135  Mass.  407.  In  HufCord  v.  Railroad 
Co.,  53  Mich.  118,  18  N.  W.  580,  Cooley.  C.  J.,  said:  "In  Frederick  v.  Railroad 
Co.,  37  ilich.  342,  It  was  decided  that,  as  between  the  passenger  and  the  con- 
ductor, the  ticket  must  be  the  conclusive  evidenct  of  the  extent  of  the  pas- 
senger's right  to  travel.  No  other  rule  can  protect  the  conductor  in  the  per- 
formance of  his  duties,  or  enable  him  to  determine  what  he  may  or  may  not 
lawfully  do  in  managing  the  train  and  collecting  the  fares.  If,  when  a  pas- 
senger makes  an  assertion  that  he  has  paid  fare  through,  he  can  produce  no 
evidence  of  it,  the  conductor  must  at  his  peril  concede  what  the  passenger 
claims,  or  take  all  the  responsibilities  of  a  trespasser  if  he  refuses.  It  is  easy 
to  see  that  his  position  is  one  in  which  any  lawless  person,  with  sufficient  im- 
prudence and  recklessness,  may  have  him  at  disadvantage,  and  where  he  can 
never  be  certain,  if  he  performs  his  apparent  duty  to  his  employer,  that  he 
may  not  be  subjected  to  severe  pecuniary  responsibility.  Such  a  state  of 
things  is  not  desirable  either  for  railroad  companies  or  for  the  public.  The 
public  is  interested  in  having  the  rules  whereby  conductors  are  to  govern 
their  action  certain  and  definite,  so  that  they  may  be  enforced  without  confu- 
sion and  without  stoppage  of  trains;  and  if  the  enforcement  causes  temporary 
Inconvenience  to  a  passenger,  who,  by  accident  or  mistake,  Is  without  the 
proper  evidence  of  his  right  to  a  passage,  though  he  has  paid  for  it,  it  is  bet- 


512  CARRIERS    OF    PASSENGERS.  [Cll.   8 

sold,  the  latter  may,  howeyer,  hold  the  carrier  liable  for  breach  of 
the  contract  to  carrv."'^  This  becomes  material  principally  in  re- 
lation to  the  measure  of  damages,  which  will  be  discussed  in  the 
next  chapter.^  =^®     The  passenger  is  bound  by  a  provision  in  his 

ter  that  he  submit  to  the  temporary  inconvenience,  than  that  the  business  of 
the  road  be  interrupted,  to  the  general  annoj'ance  of  all  who  are  upon  the 
train.  The  conductor's  duty,  when  the  passenger  is  without  the  evidence  of 
having  paid  his  fare,  is  plain  and  imperative,  and  it  can  serve  no  good  purpose 
and  settle  no  rights  to  have  a  controversy  with  him.  The  passenger  gains 
nothing  by  being  put  off  the  car,  and  loses  nothing  by  paying  what  is  de- 
manded, and  staying  on."  "How,  then,  is  the  conductor  to  ascertain  the  con- 
tract entered  into  between  the  passenger  and  the  railroad  company  where  a 
ticket  is  purchased  and  presented  to  him  ?  Practically,  there  are  but  two  ways, 
—one.  the  evidence  afforded  by  the  ticket;  the  other,  the  statement  of  the 
passenger,  contradicted  by  the  ticket.  Which  should  govern?  »  *  *  There 
is  but  one  rule  which  can  safely  be  tolerated  with  any  decent  regard  to  the 
rights  of  railroad  companies  and  passengers  generally.  As  between  the  con- 
ductor and  passenger,  and  the  right  of  the  latter  to  travel,  the  ticket  produced 
must  be  conclusive  evidence;  and  he  must  produce  it,  when  called  upon,  as 
the  evidence  of  his  right  to  the  seat  he  claims.  Where  a  passenger  has  pur- 
chased a  ticket,  and  the  conductor  does  not  carrj-  him  according  to  its  terms, 
or  If  the  company,  through  the  mistake  of  its  agent,  has  given  him  the  wrong 
ticket,  so  that  he  has  been  compelled  to  relinquish  his  seat,  or  pay  his  fare 
a  second  time  in  order  to  retain  it,  he  would  have  a  remedy  against  the  com- 
pany for  a  breach  of  the  contract;  but  he  would  have  to  adopt  a  aeclaration 
differing  essentially  from  the  one  resorted  to  in  this  case."  Frederick  v.  Kail- 
road  Co.,  37  Mich.  342.  In  this  case  the  passenger  had  paid  to  a  point  beyond 
that  called  for  by  the  ticket,  and,  refusing  to  pay  fare,  was  ejected,  and  was 
denied  a  recovery  in  an  action  on  the  case.  The  principle  enunciated  in  this 
case  in  Michigan  that,  as  between  the  passenger  and  the  conductor,  the  ticket 
is  the  conclusive  evidence  of  the  passenger's  rights,  is  sustained  in  several 
well-considered  cases.  Townsend  v.  Railroad  Co.,  5G  N.  Y.  295;  Chicago,  B. 
&  Q.  R.  Co.  V.  Griffin,  68  111.  499;  McClure  v.  Railroad  Co.,  34  Md.  532;  Shel- 
ton  V.  Railroad  Co.,  29  Ohio  St.  214;  Yoiton  v.  Railway  Co.,  54  Wis.  234,  11 
N.  W.  482. 

126  Murdock  v.  Railroad  Co.,  137  Mass.  293;  Muckle  v.  Railway  Co.,  29  N.  Y. 
Supp.  732;  Townsend  v.  Railroad  Co.,  56  N.  Y.  295;  Elliott  v.  Railroad  Co.,  53 
Hun,  78,  6  N.  Y.  Supp.  363;  Frederick  v.  Railroad  Co.,  37  Mich.  342;  Lake  Erie 
&  W.  R.  Co.  v.  Fix,  88  Ind.  381;  Pennsylvania  Co.  v.  Bray,  125  Ind.  229,  25 
N.  E.  439;  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Berryman,  11  Ind.  App.  640,  36 
N.  E.  728;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Mackie,  71  Tex.  491,  9  S.  W.  451; 
Appleby  v.  Railway  Co.,  54  Minn.  169,  55  N.  W.  U17.  But  see  Bradshaw  v. 
Railroad  Co.,  135  Mass.  407. 

"8  Post,  p.  562. 


§    109]  TICKET    AS    EVIDENCE    OF    PASSKNGER's    RIGHTS.  513 

ticket  that  the  contract  is  not  assignable;  ^"  that  coupons  are  not 
good  if  detached;  ^^'  that  the  ticket  is  good  on  certain  trains 
only;*"  or  that  a  return-trip  coupon  will  not  be  honored  unless 
stamped,  etc."*^  So  provisions  that  the  ticket  must  be  used  within 
a  certain  time  are  binding,^^^  but  the  journey  need  not  be  com- 
pleted within  that  time.  It  is  sufficient  if  it  is  begun  before  the 
time  has  expired.*^^  In  the  absence  of  such  a  provision,  a  ticket 
is  good  at  any  time.^^^  When  the  passenger  has  begun  his  journey. 
he  has  no  right,  unless  otherwise  agreed,  to  stop  over  at  interme- 

127  Way  V.  RaUway  Co.,  64  Iowa,  48,  19  N,  W.  828,  Post  v.  Railroad  Co.,  14 
Neb.  110,  15  N.  W.  22.5;  Walker  v.  Railroad  Co.  15  Mo.  App.  333;  Drummond 
T.  Railroad  Co.,  7  Utah,  118,  25  Pac.  733.  And  see,  as  to  forfeiture  of  the 
ticket,  Freidenhich  v.  Railroad  Co.,  53  Md.  201;  Pittsburgh,  C,  C.  «&  St  L,  R. 
Co.  V.  Russ,  6  C.  C.  A.  597,  57  Fed.  822. 

128  Boston  &  M.  R.  Co.  v.  Chipman,  146  Mass.  107,  14  N.  E.  ^0;  Norfolk,  N. 
&  W.  R.  Co.  V.  Wysor,  82  Va.  250;  Louisville,  N.  &  G.  S.  R.  Co.  v.  Harris,  9 
Lea  (Tenn.)  180;  Houston  &  T.  C.  R.  Co.  v.  Ford,  53  Tex.  364.  But  see,  where 
the  coupons  are  detached  by  mistake,  Wightman  v.  Railway  Co.,  73  Wis.  169. 
40  N.  W.  689.  And  compare  Chicago,  St.  L.  &  P.  R.  Co.  v.  Holdrige,  118  Ind. 
281,  20  N.  E.  837;  Rouser  v.  Railway  Co.,  97  Mich.  565,  56  N.  W.  937;  Thomp- 
son V.  Truesdale  (Minn.)  63  N.  W.  259. 

129  Lake  Shore  &  M.  G.  Ry.  Co.  v.  Rosenzweig,  113  Pa.  St,  519,  6  Atl.  545; 
Thorp  V.  Railroad  Co.,  61  Vt.  378,  17  Atl.  791;  IVL-jcRae  \.  Railroad  Co.,  88  N. 
C.  526. 

139  Mosher  v.  Railway  Co.,  127  U.  S.  390,  8  Sup.  Ct  1324;  Boylan  v.  Railroad 
Co.,  132  U.  S.  146,  10  Sup  Ct.  .50;  Edwards  v.  RaUway  Co.,  81  Mich.  364,  45 
N.  W.  827;  Bo.vers  v.  Railroad  Co.,  158  Pa.  St.  302,  27  Atl.  893;  Central  Trust 
Co.  V.  East  Tennessee,  V.  &  G.  Ry.  Co.,  65  Fed.  332. 

131  Hill  V.  Railroad  Co.,  63  N.  Y.  101;  Barker  \.  Cofliu,  31  Barb.  556;  Boice 
V.  Railroad  Co.,  61  Barb.  611;  Wentz  v.  Railroad  Co..  3  Hun,  241;  Boston  & 
L.  R.  Co.  V.  Proctor,  1  Allen,  207;  State  v.  Campbell.  32  N.  J.  Law.  309;  Pen- 
nington V.  Railroad  Co.,  62  Md.  95;  Lewis  v.  Railroad  Co.,  93  Ga.  225,  18  S.  E. 
650;  Johnson  v.  Railroad  Co.,  46  N.  H.  213;  Rawitzky  v.  Railroad  Co.,  40  La. 
Ann.  47,  3  South.  387.  Contra,  Texas  &  P.  Ry.  Co.  v.  Dennis,  4  Tex.  Civ.  App. 
90,  23  S.  W.  400;   by  statute,  Dryden  v.  Railroad  Co.,  60  Me.  512. 

132  Auerback  v.  Railroad  Co.,  89  N.  Y.  281;  Lundy  v.  Railroad  Co.,  66  Cal. 
191,  4  Pac.  1193;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wright  (Tex.  Civ.  App.)  30  S.  W. 
294;  Evans  v.  Railroad  Co.,  11  Mo.  App.  463.  And  see  Georgia  &  C.  R.  Co.  v. 
Bigelow,  68  Ga.  219;    Pennsylvania  Co.  v.  Hine,  41  Ohio  SL  276. 

13  3  Pennsylvania  R.  Co,  v.  Spicker,  105  Pa.  St.  142.  And  see  Dryden  v.  Rail- 
road Co.,  60  Me.  512. 

LAW  BAILM.— 83 


514  CARRIERS    OF    PASSENGERS.  [Ch.   8 

diate  points,  and  then  to  insist  on  being  carried  to  his  destination 
on  the  same  ticket^'*  But  a  coupon  ticket  over  several  roads  en- 
titles the  passenger  to  step  at  the  end  of  each  carrier's  line,  in  the 
absence  of  any  express  limitation.^" 

SAME— BIGHT  TO  MAKE  REGULATIONS. 

110.  A  public  carrier  of  passengers  can  make  and  enforce 
reasonable  regulations  for  the  management  of  its 
vehicles  and  the  conduct  of  passengers. 

Carriers  of  passengers  can  make  whatever  regulations  they  find 
necessary  for  the  safe  and  proper  management  of  their  trains  or 
other  vehicles.  These  regulations  are  valid  and  binding  on  pas- 
sengers, if  they  are  reasonable.^"  It  has  been  seen  that  railroad 
companies  are  not  bound  to  carry  passengers  on  their  freight 
trains.^^^  Carriers  may  require  passengers  to  ride  in  certain  parts 
of  their  vehicles,  as  in  the  passenger  cars,  and  not  in  the  baggage 
cars  or  on  the  engine.^ ^^     These  regulations  are  reasonable,  but  a 

134  Hamilton  v.  Railroad  Co.,  51  N.  Y.  100;  Beebe  v.  Ayres,  28  Barb.  275-, 
Terry  v.  Railroad  Co.,  13  Hun,  359;  Cheney  v.  Railroad  Co.,  11  Mete.  (Mass.) 
121;  Oil  Creek  R.  Co.  v.  Clark,  72  Pa.  St.  231;  Dietrich  v.  Railroad  Co.,  71 
ra.  SL  432;  Vankirk  v.  Railroad  Co.,  76  Pa.  St.  G6;  Wyman  v.  Railroad  Co.. 
34  ilinn.  210,  25  N.  W.  849;  Pennsylvania  R.  Co.  v.  Parry,  55  N.  J.  Law,  551. 
27  Atl.  914;  Cleveland,  C.  &  C.  R.  Co.  v.  Bartram,  11  Ohio  St.  457;  Drew  v. 
Railroad  Co.,  51  Cal.  425;  Green  v.  Railroad  Co.,  50  Tex.  43;  Johnson  v.  Rail- 
road Co.,  G3  Md.  106;  Roberts  v.  Koehler,  30  Fed.  94.  Contra,  by  Statute,  Car- 
penter V.  Railroad  Co.,  72  Me.  388. 

'36  Brooke  v.  Railroad  Co.,  15  Mich.  332;  Little  Rock  &  F.  S.  R.  Co.  v.  Dean, 
4S  Ark.  529. 

i3«  Day  V.  Owen,  5  Mich.  520;  Chicago  &  N.  W.  Ry.  Co.  v.  Williams.  55  111. 
185;  Hofifbauer  v.  RaUroad  Co.,  52  Iowa,  342,  3  N.  W.  121;  State  v.  Chovin,  7 
Iowa,  204;  Hibbard  v.  Railroad  Co.,  15  N.  Y.  455;  Vedder  v.  Fellows,  20  N.  Y. 
126;  Pennsylvania  R,  Co.  v.  Langdon,  92  Pa.  St.  21;  Du  Laurans  v.  Railroad 
Co.,  15  Minn.  49  (Gil.  29);  Gleason  v.  Transportation  Co.,  32  Wis..  85;  Bass  v. 
Railway  Co.,  36  Wis.  450;  State  v.  Overton,  24  N.  J.  Law,  435;  Brown  v. 
Railroad  Co.,  4  Fed.  37,  7  Fed.  51;  Ft.  Scott,  W.  &  W.  Ry.  Co.  v.  Sparks  (Kan. 
Sup.)  39  Pac.  1032. 

"T  Ante,  p.  491. 

i»«0'DonneU  v.  Railroad  Co.,  59  Pa.  St  239;  Kentucky  Cent.  R.  Co.  v. 
Thomas,  79  Ky.  160;  Houston  &  T.  G  R.  Co.  v.  Qemmons,  55  Tex.  88. 


§    110]  RIGHT    TO    MAKE    REGULATIONS.  515 

rule  prohibiting  passengers  from  changing  their  seats  while  en 
route  would  not  be."* 

The  dominion  of  a  railroad  corporation  over  its  trains,  tracks, 
and  right  of  way  is  no  less  complete  or  exclusive  than  that  which 
every  owner  has  over  his  own  property.  Hence  the  corporation 
may  exclude  whom  it  pleases,  when  they  come  to  transact  their 
own  private  business  with  passengers  or  other  third  persons,  and 
admit  whom  it  pleases,  when  they  come  to  transact  such  busi- 
ness.^*" 

Carriers  not  only  have  the  power,  but  are  bound,  to  take  all  rea- 
sonable and  proper  means  to  provide  for  the  comfort  and  conven- 
ience of  passengers.  It  follows  that  they  have  a  right,  in  the  ex- 
ercise of  this  authority  and  duty,  to  repress  and  prohibit  all  dis- 
orderly conduct  in  their  vehicles,  and  to  expel  therefrom  any  per- 
son whose  conduct  or  condition  is  such  as  to  render  acts  of  im- 
propriety, rudeness,  indecency,  or  disturbance  either  inevitable  or 
probable.^ *^  The  agent  in  charge  of  the  vehicle  is  not  bound  to 
wait  until  some  overt  act  of  violence  or  other  misconduct  has  been 
committed,  to  the  inconvenience  or  annoyance  of  other  passengers, 
before  exercising  his  authority  to  expel  the  offender.  The  right 
and  power  of  the  carrier  and  his  servants  to  prevent  the  occurrence 
of  improper  and  disorderly  conduct  in  a  public  vehicle  is  quite  as 
essential  and  important  as  the  authority  to  stop  a  disturbance  or 
repress  acts  of  violence  or  breaches  of  decorum  after  they  have  been 
committed  and  the  mischief  of  annoyance  and  disturbance  has 
been  done.^*' 

139  Green,  C.  J.,  in  State  v.  Overton,  24  N.  J.  Law.  435,  441.  And  see  Sontb 
Florida  R.  Co.  v.  Rhodes,  25  Fla.  40,  5  Soutli    633. 

Ko  Fluker  v.  Railroad  Co.,  81  Ga.  461,  8  S.  B   529. 

1*1  Vinton  v.  Railroad  Co.,  11  Allen,  304;  Sullivaa  v.  Railroad  Co.,  148  Mass. 
119,  18  N.  E.  678;  Baltimore,  P.  &  C.  R.  Co.  v.  McDonald,  68  Ind.  316;  Peavy 
V.  Railroad  Co.,  81  Ga,  485,  8  S.  E.  70;  Chicago  City  Ry.  Co.  v.  Pelletier,  134 
m.  120,  24  N.  E.  770. 

1*2  Vinton  v.  Railroad  C<x,  11  Alien,  304.  But  see  Putnam  v.  Railroad  Co., 
55  N.  Y.  108. 


&lt>  CARRIERS    OF    PASSENGERS.  [Ch.  S 


SAME— LIABILITY  FOR  DELAY. 

111.  A  public  carrier  of  passengers  is  liable  for  any  daon- 
age  caused  by  his  failure  to  use  due  diligence  to 
transport  passengers  according  to  his  published 
time-table,  and  for  delays  caused  by  his  negligence 
after  transportation  has  begun. 

Conforming  to  Published  Time-Table. 

By  the  publication  of  time-tables,  a  carrier  of  passengers  makes 
an  offer  to  the  public  to  transport  all  persons  who  may  apply  in 
accordance  therewith.^ *^  When  this  offer  is  accepted  by  the  pur- 
chase of  a  ticket  or  an  application  for  passage,  the  carrier  is  bound 
to  make  all  reasonable  efforts  to  comply  with  his  time-table,  and 
is  liable  to  such  persons  for  all  damages  due  to  his  delay.^**  When 
changes  are  made  in  a  time-table,  the  same  publicity  must  be  given 
to  them  as  to  the  original  publication.  If  the  regular  time-table 
was  published  in  a  newspaper,  and  no  notice  of  a  change  is  given 
except  the  posting  of  a  notice  in  the  carrier's  office,  this  would  not 
be  sufficient  to  excuse  the  carrier.^*^ 

If  the  time  is  varied,  and  a  train  fails  to  go  at  the  appointed  time,^ 
for  the  mere  convenience  of  the  carrier  or  a  portion  of  his  ex- 
pected passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he 
has  had  reasonable  notice  of  it  But,  even  after  the  sale  of  a  ticket, 
the  carrier  has  a  right,  by  giving  reasonable  notice,  to  vary  the 
time  of  running  his  trains  or  other  vehicles.^*" 

Dday  in  Transportation. 

After  the  transportation  of  a  passenger  has  begun,  the  carrier  is 
liable  if  he  fails  to  complete  the  trip  with  reasonable  diligence  and 
speed.     But  for  delays  due  to  other  causes  than  the  carrier's  de- 

1*3  Hawcroft  v.  Railway  Co.,  8  Eng.  Law  &  Eq.  362;  HamliB  v.  Railroad 
Co.,  1  Hurl.  &  N.  408. 

1**  Sears  v.  Railroad  Co.,  14  Allen,  433;  Savannah,  S.  &  S.  R.  Co.  v.  Bonaud, 
58  Ga.  180;    Heirn  v.  M'Gaughan,  32  Miss.  17. 

i«o  Sears  v.  Railroad  Co.,  14  Allen,  433. 

148  Id. 


§§    112-113]  INJURIES    TO    PASSENGERS.  517 

fault  or  negligence,  such  as  the  act  of  Grod,  the  carrier  is  not  lia- 
ble.^*' The  carrier,  of  course,  niar^by  special  contract,  bind  him- 
self to  carry  within  a  certain  time;  and  in  such  case  even  the  act 
of  God  will  not  excuse  him.^** 


SAME--INJURIES  TO  PASSENGERS. 

112.  Public  carriers  of  passengers  are  not  insurers  of  safe- 

ty, but  they  are  bound  to  exercise  the  highest  de- 
gree of  care  possible  under  the  circumstances. 

113.  Proof  of  damage  to  the  passenger  by  the  carrier  raises 

a  presumption  of  actionable  negligence  on  the  part 
of  the  carrier,  -which  may  be  rebutted — 

(a)  By  bringing  the   case   within   exceptions   similar  to 

those   recognized  in  the   case  of  carriers  of  goods 
(p.  526); 

(b)  By  sho-wlng  the  absence  of  negligence  on  the  part  of 

the  carrier  (p.  526);  or 

(c)  By  sho"wing   contributory  negligence   on  the  part  of 

the  passenger  (p.  527). 

Degree  of  Care  Due  PaBsemgers. 

"A  carrier  of  passengers  is  not  an  insurer.***  Not  only  does 
the  intelligence  and  volition  of  the  person  carried  create  a  differ- 

1*7  Quimby  v.  Vanderbilt,  17  N.  Y.  306;  Williams  v.  Vanderbilt,  28  N.  Y. 
217;  Weed  v.  Railroad  Co.,  17  N.  Y.  362;  Vair  Buskirk  v.  Roberts,  31  N.  Y. 
661;  Eddy  v.  Harris,  78  Tex.  661,  15  S.  W.  107;  Alabama  &  V.  Ry.  Co.  v. 
Purnell,  69  Miss.  652,  13  South.  472;  Cobb  v.  Howard.  3  Blatehf.  524,  Fed.  Cas. 
No.  2.924;  Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408;  Hobbs  v.  Railway  Co.. 
L.  R.  10  Q.  B.  111. 

X48  Walsh  V.  Railroad  Co.,  42  Wis.  23.  And  see,  for  other  instances  of  special 
contract,  Williams  v.  Vanderbilt,  28  N.  Y.  217;  Ward  v.  Vanderbilt,  4  Abb. 
Dec.  (N.  Y.)  521;  Watson  v.  Duykinek,  3  Johns.  335;  Dennison  v.  The  Wataga, 
1  Phila.  (Pa.)  468;  Brown  v,  Harris,  2  Gray,  359;  Porter  v.  The  New  England, 
17  Mo.  290;   West  v.  The  Uncle  Sam,  1  McAJl,  505,  Fed.  Cas.  No.  17,427. 

i4»  2  Jagg.  Torts,  p.  1083;  White  v.  Boulton,  Peake,  113  (this  is  the  first  case 
on  the  subject);  Hubbard,  J.,  in  Ingalls  v.  Bills,  9  Mete.  (Mass.)  1.  Et  vide 
Crofts  V.  Waterhouse,  11  Moore,  133;  Bennett  v.  Dutton,  10  N.  H.  481;  Read- 
head  V.  Railway  Co.,  L.  R.  2  Q.  B.  412,  L.  R.  4  Q.  B.  379. 


518  CARRIERS    OF    PASSENGERS.  [Ch.   8 

ence  in  the  degree  of  care  which  it  is  proper  to  demand  of  the  car- 
rier, corresponding  to  the  allowance  for  the  inherent  vice  or  disease 
of  live  stock,  but  the  courts  also  recognize  that  one  result  of  mak- 
ing carriers  of  passengers  insurers  would  have  been  either  the  re- 
fusal of  the  carrier  to  undertake  passenger  traffic,  or  their  refusal 
of  it  except  upon  special  contract  affecting  any  individual  case.^''° 
A  carrier  is  not  necessarily  guilty  of  negligence,  although  it  may 
have  been  possible  to  have  prevented  the  damage;^"  but  he  is 
bound  to  exercise,  at  least,  such  diligence  as  a  good  specialist  in 
such  business  is  accustomed  to  use,  and  this  must  rise  in  propor- 
tion to  the  risk.^^^  Indeed,  the  cases  generally  recognize  that  the 
carrier  must  exercise  the  utmost  care  under  the  circumstances, 
short  of  a  warranty  of  the  safety  of  the  passenger."  ^^^  This  strin- 
gent rule  as  to  the  duty  and  liability  of  carriers  of  passengers  rests 
on  considerations  of  public  policy  growing  out  of  the  interest  which 

150  Scliouler,  Bailm.  §  652.  Notes,  with  numerous  citations,  as  to  the  degree 
of  care  required  towards  passengers,  58  Am.  &  Eng.  R.  Gas.  73,  90,  110,  133, 
194. 

151  Gilbert  v.  Railway  Co.,  160  Mass.  403,  36  N.  E.  60.  But  see  Jackson  v. 
Tollett,  2  Starkie,  37;  Mayhew  v,  Boyce,  1  Starkie,  423;  Card  v.  Railroad  Co., 
50  Barb.  39;   Crofts  v.  Waterhouse,  3  Bing.  319 

152  Wbart.  Neg.  §§  627-637.  This  stacdard  is,  however,  severely  criticised. 
Carrico  v.  Railway  Co.,  35  W.  Va.  389,  14  S.  E  12;  Hutch.  Carr.  p.  501,  note  1. 

153  Indianapolis  &  St.  L.  R.  Go.  v.  Horst,  93  U.  S.  291;  Chicago  &  A.  R. 
Co.  V.  Byrum,  153  111.  131,  38  N.  E.  578;  Chicago,  P.  &  St  L.  Ry.  Co.  v.  Lewis, 
145  111.  67,  33  N.  E.  960;  Spellman  v.  Transit  Co.,  36  Neb.  890,  55  N.  W.  270; 
Gulf,  C.  &  S.  P.  Ry.  Co.  v.  Higby  (Tex.  Civ.  App.)  26  S.  W.  737;  Douglas 
V.  Railway  Co.  (Iowa)  58  N.  W.  1070;  BischofE  v.  Railway  Co.,  121  Mo.  216, 
25  S.  W.  908;  WUson  v.  Railroad  Co.,  26  Minn.  278,  3  N.  W.  333;  Inter- 
national &  G.  N.  Ry.  Co.  V.  Welch.  86  Tex.  203.  24  S.  W.  39x;  Taylor  v. 
Pennsylvania  Co..  50  Fed.  755;  Jackson  v.  Railway  Co.,  118  Mo.  199,  24  S. 
W.  192;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Stricklin  (Tex.  Civ.  App.)  27  S.  W.  1093; 
Christie  v.  Griggs,  2  Camp.  79;  Dunn  v.  Railway  Co.,  58  Me.  187;  The  New 
World  V.  King,  16  How.  469;  Hutch.  Carr.  §  500  et  seq.  As  to  operation  of 
horse-car  lines,  Noble  v.  Railway  Co.,  98  Mich.  249,  57  N.  W.  126;  Watson  v. 
Railway  Co.,  42  Minn.  46,  43  N.  W.  904.  An  instruction  that  a  carrier  of  pas- 
sengers is  bound  to  run  and  operate  its  cars  "with  the  highest  degree  of  care  o1 
a  very  prudent  person,  in  view  of  aU  the  facts  and  circumstances  at  the 
time  of  the  alleged  injury,"  does  not  require  too  high  a  degree  of  care.  O'Con- 
nell  V.  Railway  Co.,  106  Mo.  482,  17  S.  W.  494.  And,  generally,  as  to  require- 
ment of  highest  measure  of  care  in  conduct  of  business  by  common  car- 


§§    112-113]  INJURIES    TO    PASSENGERS.  519 

the  state  or  government  as  parens  patriie  has  in  protecting  the  lives 
and  limbs  of  its  subjects,"*  These  considerations  apply  with  pe- 
culiar force  to  passengers  on  public  conveyances,  owing  to  the  great 
number  of  persons  who  daily  and  necessarily  employ  them.  One 
curious  effect  of  this  reason  for  the  rule  is  to  be  observed  in  the 
distinction  between  the  duty  owed  to  intending  passengers  by  the 
carrier  and  that  owed  to  other  persons.  As  to  intending  passen- 
gers, the  protection  of  this  extraordinary  liability  of  the  carrier  is 
extended  even  before  the  passenger  has  boarded  the  conveyance; 
while  as  to  other  persons,  even  though  rightfully  on  the  carrier^^s 
premises,  the  carrier  la  liable  only  for  the  exercise  of  ordinary 
care.^^°  " 

Same — In  Transit. 

"The  carrier  of  passengers  is  responsible  for  injuries  received  by 
passengers  in  the  course  of  their  transportation,  which  might  have 
been  avoided  or  guarded  against  by  the  exercise,  on  his  part,  of 
extraordinarv  vigilance,  aided  by  the  highest  skill.  And  this  cau- 
tion and  vigilance  must  necessarily  be  extended  to  all  agencies  or 
means  employed  by  the  carrier  in  the  transportation  of  the  pas- 
senger. Among  the  duties  resting  upon  him  is  the  important  one 
of  providing  cars  or  vehicles  adequate — ^that  is,  suflBciently  secure, 
as  to  strength  and  other  requisites — for  the  safe  conveyance  of  pas- 
sengers.    That  duty  the  law  enforces  with  great  strictness.     For 

riers,  see  Willock  v.  RaUroad  Co.,  166  Pa.  St.  184,  30  Atl.  948;  Greenh.  Pub. 
Pol.  513.  Cable  lines,  Watson  v.  RaUway  Co.,  42  Minn.  46,  43  N.  W.  904. 
Electric  lines,  Denver  Tramway  Co.  v.  Reid.  4  Colo.  App.  53,  35  Pac.  269. 
To  prevent  electric  shock  from  defective  insulation,  Burt  v.  Railway  Co.,  83 
Wis.  229,  53  N.  W.  447.  Elevators,  Mitchell  v.  Marker,  10  C.  C.  A.  306,  62 
Fed.  139.  A  ferry,  McLean  v.  Burbank,  11  Minn.  277  (Gil.  189),  12  Minn. 
530  (Gil.  438). 

154  Jacobus  V.  Railway  Co.,  20  Minn.  125  (Gil.  110).  And  see  Shear.  &  R. 
Neg.  §  24;  Cleveland,  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  St.  12;  Philadelphia 
&  R.  R.  Co.  V.  Derby,  14  How.  486;  The  New  World  v.  King,  16  How.  469; 
Smith  V.  Railroad  Co.,  24  N.  Y.  222;  Illinois  Cent  R.  Co.  v.  Read,  37  111  484; 
Pennsylvania  R.  Co.  v.  Henderson,  51  Pa.  St.  315;  Bissell  v.  Railroad  Oo^ 
25  N.  Y.  442,  455,  per  Denio,  J.;  New  York  Cent  R.  Co.  v.  Lock  wood,  17 
Wall  357. 

X66  See  post,  p.  528. 


620  CARRIERS    OF    PASSKNGERS.  [Ch.   8 

the  slightest  negligence  or  fault  in  this  regard,  from  Tvhich  injury 
results  to  the  passenger,  the  carrier  is  liable  in  damages."  ^°' 

WTien  it  is  said  that  carriers  are  held  to  the  highest  degree  of 
care  and  diligence  for  the  safety  of  their  passengers,  it  is  not  meant 
that  they  are  required  to  use  every  possible  precaution,  for  that, 
in  many  instances,  would  defeat  the  very  objects  of  their  employ- 
ment. There  are  certain  dangers  that  are  necessarily  incident  to 
certain  modes  of  travel,  and  these  the  passenger  assumes  when  he 
elects  to  adopt  such  mode.  But  all  that  is  meant  is  that  they  should 
use  the  highest  degree  of  care  that  is  reasonably  consistent  with 
the  practical  conduct  of  the  business.^^^  They  are  not  required, 
for  instance,  with  respect  to  either  passenger  or  freight  trains,  to 
use  steel  rails  and  iron  or  granite  cross-ties,  because  such  ties  are 
less  liable  to  decay,  and  hence  safer,  than  those  of  wood;  nor,  upon 
freight  trains,  air  brakes,  bell  pulls,  and  a  brakeman  upon  every 
car;  but  it  does  emphatically  require  everything  necessary  to  the 
security  of  the  passenger  upon  either,  and  reasonably  consistent 
with  the  business  of  the  carrier,  and  the  means  of  conveyance  em- 
ployed.^^® 

Carriers  are  not  responsible  for  hidden  defects  in  their  appli- 
ances which  no  human  care  or  skill  could  have  either  detected  or 

168  Pennsylvania  Co.  v.  Roy,  102  U.  S.  451,  456, 

167  Indianapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291;  Dunn  v.  Railway 
Co.,  58  Me.  187;  Hegeman  v.  Railroad  Corp.,  13  N.  Y.  9;  Kansas  Pac.  Ry. 
Co.  V.  Miller,  2  Colo.  442;  Pershing  v.  Railway  Co.,  71  Iowa,  5G1,  32  N.  W. 
488.  "It  sometimes  happens  that  a  derailed  u-ain  is  precipitated  from  a  high 
embankment,  and  the  lives  of  its  passengers  endangered  or  destroyed.  Ac- 
cidents of  that  character  could  be  avoided  by  constructing  aU  railroad  embank- 
ments of  such  a  width  that  a  derailed  train  or  car  would  come  to  a  stop 
before  reaching  the  declivity.  But  this  would  add  immensely  to  the  cost  of 
constructing  such  improvements,  and,  if  required,  would  in  many  cases  pre- 
vent their  construction  entirely.  If  passenger  trains  were  run  at  the  rate  of 
ten  miles  per  hour,  instead  of  from  twenty-five  to  forty  miles,  it  is  probable 
that  all  danger  of  derailment  would  be  avoided.  But  railroad  companies  could 
not  reasonably  be  required  to  adopt  that  rate  of  speed.  Their  roads  are  con- 
structed with  a  view  to  rapid  transit,  and  the  traveling  public  would  not 
tolerate  the  running  of  trains  at  that  low  speed."  Pershing  v.  Eailroad  Co^ 
supra. 

168  Indianapolis  «&  St  L.  li,  Co.  v.  Horst,  93  U.  S.  291. 


§§    112-113]  INJURIES    TO    PASSENGERS.  521 

prevented.     They  do  not  warrant  that  their  appliances  are  free 
from  such  a  defects  and  imperfections.^"' 

It  is  established  by  the  great  weight  of  authority  that,  so  far 
as  passengers  are  concerned,  the  carrier  is  liable  for  the  negligence 
of  the  manufacturer  from  whom  he  purchases  appliances.  There- 
fore, a  carrier  is  liable  even  for  latent  defects,  which  could  not  be 
discovered  b^y  the  most  careful  external  examination,  if  it  could 
have  been  ascertained  by  any  known  test  applied  either  by  the 

manufacturer  or  the  carrier.^'" 

^  

Railroads  must  keep  pace  with  science  and  art  and  modern  im- 

189  Ingalls  V.  Bills,  9  Mete.  (Mass.)  1.  "A  latent  defect  which  will  relieve 
It  from  responsibility  is  such  only  as  no  reasonable  degree  of  skill  and  fore- 
sight could  guard  against."  Palmer  v.  Canal  Co.,  120  N.  Y.  170,  24  N.  E. 
302.  See,  also,  Frlnk  v.  Potter,  17  111.  406;  Galena  &  C.  U.  R.  Co.  v.  Fay, 
16  111.  558;  Sawyer  v.  Railroad  Co.,  37  Mo.  240;  Derwort  v.  Loomer,  21 
Conn.  245;  Mobile  &  O.  R.  Co.  v.  Thomas,  42  Ala.  672;  Anthony  v.  Railroad 
Co.,  27  Fed.  724;  Carter  v.  Railway  Co.,  42  Fed.  37;  Frink  v.  Coe,  4  G. 
Greene  (Iowa)  555.  And  see  Alden  v.  Railroad  Co.  26  N.  Y.  102,  criticised 
in  McPadden  v.  Railroad  Co,,  44  N.  Y.  478,  and  in  Carroll  v.  Railroad  Co., 
58  N.  Y.  126,  139.  See,  also,  Readhead  v.  Railway  Co.,  L.  R.  2  Q.  B.  412,  L. 
R.  4  Q.  B.  379. 

160  Hegeman  v.  Railroad  Corp.,  13  N.  Y.  9;  Caldwell  v.  Steamboat  Co.,  47 
N.  Y.  282;  CarroU  v.  Railroad  Co.,  58  N.  Y.  126;  (Curtis  v.  Railroad  Co.,  IS 
N.  Y.  534,  538;  Perkins  v.  Railroad  Co.,  24  N.  Y.  196,  219;  Bissell  v.  Railroad 
Co.,  25  N.  Y.  442;  Illinois  Cent.  R.  Co.  v.  Phillips,  49  lU.  234.  And  see 
Pittsburgh,  C.  &  St.  L.  R.  Ck).  v.  Nelson,  51  Ind.  150.  Contra,  Nashville  & 
D.  R.  Co.  V.  Jones,  9  Heisk.  27.  In  the  absence  of  notice  that  the  company 
will  not  be  liable  for  defective  appliances  in  a  sleeping-car,  a  passenger  may 
well  assume  that  the  whole  train  is  under  one  general  management.  Thorije 
V.  Railway  Co.,  76  N.  Y.  402;  Kinsley  v.  Railroad  Co.,  125  Mass.  54;  Rail- 
road Co.  V.  WaLrath,  38  Ohio,  St.  461.  "All  that  they  can  reasonably  be  ex- 
pected to  do  is  to  purchase  such  cars  and  other  necessaries  as  they  have  rea- 
son to  believe  will  be  safe  and  proper,  giving  them  such  inspection  as  is 
usual  and  practicable  as  they  buy  them.  When  they  make  such  an  examina- 
tion, and  discover  no  defects,  they  do  all  that  is  practicable,  and  it  is  no 
neglect  to  omit  attempting  what  is  impracticable.  They  have  a  right  to  as- 
sume that  a  dealer  of  good  repute  has  also  used  such  care  as  was  incumbent 
on  him,  and  that  the  articles  purchased  of  him  which  seem  right  are  right  in 
fact.  Any  other  rule  would  make  them  liable  for  what  is  not  negligence,  and 
put  them  practically  on  the  footing  of  insurers."  Grand  Rapids  &  L  R.  Co. 
V.  Huntley,  38  Mich.  537. 


522  CARRIERS    OF    PAS5EXGERS.  [Ch.   8 

provement,  in  their  application  to  the  carriage  of  passengers,  but 
are  not  responsible  for  the  unknown  as  well  as  the  new.^'^ 

The  carrier  is  bound  to  exercise  the  highest  degree  of  care,  in 
view  of  all  circumstances,  to  prevent  damage  to  its  passengers  by 
the  operation  of  its  means  of  conveyance,  avoiding  sudden  starts 
and  stops,^^^  danger  from  curves,^^^  or  a  dangerous  rate  of  speed.^®* 
It  is  negligence  not  to  announce,  or  to  wrongly  announce,  sta- 
tions,^ ®°  but  not  to  neglect  to  state  that  the  train  will  stop  at  a 
railroad  crossing  before  it  reaches  the  next  station.^ ^®  Where  a 
carrier  receives  a  person  as  a  passenger  who  is  unable  to  take  care 
of  himself,  it  is  negligence  for  the  carrier  to  fail  to  take  care  of 
him.^'^     Care  has  reference  to  the  passenger's  physical  and  mental 

161  Meier  v.  Railroad  Co.,  m  Pa.  St.  225. 

182  Holmes  v.  Traction  Ck).,  153  Pa.  St.  152.  25  AtL  640;  Yamell  v.  Railroad 
Ck).,  113  Mo.  570,  21  S.  W.  1;  North  Chicago  St  R.  Co.  v.  Cook,  145  111.  551, 
33  N.  E.  958;  Bowdle  v.  Railway  Co.  (Mich.)  61  N.  W.  529;  Poole  v.  Banking 
Co.,  89  Ga.  320,  15  S.  E.  321;  Cassidy  v.  Railroad  Co.,  9  Misc.  Rep.  275,  21> 
X.  Y.  Supp.  724;  Hill  v.  Railway  Co.,  158  Mass.  458.  33  N.  E.  582;  Chicago 
&  A.  R.  Co.  V.  Arnol,  144  IlL  261,  33  N.  E.  204.  As  to  street  cars  where  pas- 
sengers are  alighting,  Cawfield  v.  Railway  Co.,  Ill  N.  C.  597,  16  S.  E.  703; 
Chicago,  B.  &  Q.  R.  Co.  v.  Landauer,  36  Neb.  642,  54  N.  W.  976  (alighting 
from  train);  Robinson  v.  Railway  Co.,  157  Mass.  224,  32  N.  E.  1;  Conway  v. 
Railroad  Co..  46  La.  Ann.  1429,  16  South.  362;  Washington  &  G.  R.  Co.  v. 
Harmon's  Adm'r,  147  U.  S.  571,  13  Sup.  Ct  557 

163  Lynn  v.  Southern  Pac.  Co.,  103  Cal.  7,  36  Pac.  1018;  Francisco  v. 
Railroad  Co.,  78  Hun,  13,  29  N.  Y.  Supp.  247;  Brusch  v.  Railway  Co.,  52 
Minn.  512,  55  N.  W.  57.  Et  vide  Highland  Ave.  &  B.  R.  Co.  v.  Donovan,  94 
Ala.  299,  10  South.  139. 

i6<  Andrews  V.  Railway  Co.,  86  Iowa,  677,  53  N.  W.  399;  Chicago,  P.  & 
St.  L.  Ry.  Co.  V.  Lewis,  145  111.  67,  33  N.  E.  960;  Pennsylvania  Co.  v.  New- 
meyer,  129  Ind.  401,  28  N.  E.  860;  Willmott  v.  Railway  Co.,  106  Mo.  535. 
17  S.  W.  490;  Mexican  Cent.  Ry.  Co.  v.  Lauricella,  87  Tex.  277.  28  S.  W. 
277.  As  to  effect  of  municipal  ordinance,  Cogswell  v.  Railway  Co.,  5  Wash. 
46,  31  Pac.  411. 

i«s  Pennsylvania  Co.  v.  Hoagland,  78  Ind.  203.  Cf.  RaUroad  Co.  v.  Aspell. 
23  Pa.  St.  147. 

108  Minock  v.  Railway  Co.,  97  Mich.  425,  56  N.  W.  780. 

167  Weightman  v.  Railway  Co.,  70  Miss.  563,  12  South.  586,  distinguishing 
Sevier  v.  Vicksburg  &  M.  R.  Co.,  61  Miss.  8;  Meyer  v.  Railway  Co.,  4  C.  C. 
A.  221,  54  Fed.  116;  Sawyer  v.  Dulany,  30  Tex.  479;  Sheridan  v.  Railroad 
Co.,  36  N.  Y.  39;   Philadelphia  C.  P.  Ry.  Co.  v.  Hassard,  75  Pa,  St  367:   Al- 


§§    112-113]  INJURIES    TO    PASSENGERS.  523 

condition.     The  carrier  must  care  for  a  person  manifestly  intox- 
icated if  he  is  received  as  a  passenger.^*'        ^^  ^  .     ,        — > 

Irrondful  Acts  of  Agents  or  Servants. 

The  carrier  is  liable  for  injury  to  a  passenger  from  wrongful  acts 
of  its  agents  or  servants  done  within  the  course  of  their  employ- 
ment.^"* The  carrier  also  owes  the  passenger  the  duty  of  protcc- 
tion  from  violence,  and  therefore  is  liable  for  any  willful  assault 
upon  the  passenger  by  an  employd,  although  the  act  be  entirely 
outside  of  his  duties,  and  not  for  the  purpose  of  serving  his  em- 
ployers.^^"     This  rule  as  to  the  carrier's  liability  for  his  servant's 

lison  V.  Railroad  Co..  42  Iowa,  274;  Jeffersonville,  M.  &  L  R.  Co.  v.  Riley, 
39  Ind.  5GS-5S4;  Indianapolis,  P.  &  C.  Ry.  Co.  v.  Pitzer,  109  Ind.  179,  G  N. 
E.  310,  10  N.  E.  70;  Croom  v.  RaUway  Co..  52  Minn.  290.  53  N.  W.  1128. 
When  a  child  of  such  tender  and  imbecile  age  is  brought  to  a  railway  sta- 
tion or  to  any  conveyance,  for  the  purpose  of  being  conveyed,  and  is  wholly 
unable  to  take  care  of  itself,  the  contract  of  conveyance  is  on  the  implied 
condition  that  the  child  is  to  be  conveyed  subject  to  due  and  proper  care  on 
the  part  of  the  person  having  it  in  charge.  Such  care  not  being  used,  where 
the  child  has  no  natural  capacity  to  judge  of  the  surrounding  circumstances, 
a  child  might  get  into  serious  danger  from  a  state  of  things  which  would 
produce  no  disastrous  consequences  to  an  adult  capable  of  taking  care  of  him- 
self. Waite  V.  Railway  Co.,  EL,  Bl.  &  El.  719,  per  Cockburn,  C.  J.,  in  ex- 
chequer chamber. 
198  Fisher  v.  Railroad  Co.,  19  S.  E.  578. 

169  Hoffman  v.  Railroad  Co.,  87  N.  Y.  25;  Railroad  Co.  v.  Walrath,  38 
Ohio  St.  461;  Thorpe  v.  Railroad  Co.,  7G  N.  Y.  402;  Pennsylvania  Co.  v. 
Roy,  102.  U.  S.  451;  article.  25  Am.  Law  Rev.  569.  See  Edwards  v.  Railway 
Co.,  L.  R.  5  C.  P.  445. 

170  Fick  V.  Railway  Co.,  68  Wis.  469.  32  N.  W.  527;  Bryant  v.  Rich,  lOG 
Mass.  180;  Craker  v.  Railway  Co.,  36  Wis.  657;  Louisville  &  N.  R.  Co.  v. 
Ballard,  85  Ky.  307,  3  S.  W.  530;  Wabash  Ry.  Co.  v.  Savage,  110  Ind.  156, 
9  N.  E.  85;  Heenrich  v.  Pullman  Palace  Car  Co.,  20  Fed.  100;  Ramsden  v. 
Railroad  Co.,  104  Mass.  117;  Chicago  &  E.  R.  Co.  v.  Flexman,  103  111.  546; 
Thomp.  Carr.  Pass.  352-377.  In  some  cases  the  fact  of  the  retention  of  the 
employs  by  the  carrier  after  knowledge  of  the  wrongful  act  is  deemed  ma- 
terial, as  indicating  ratification.  Goddard  v.  Railway  Co.,  57  Me.  202;  Bass 
V.  Railway  Co.,  42  Wis.  654.  In  Bryant  v.  Rich,  106  Mass.  180,  where  the 
plaintiff,  a  passenger  on  a  steamboat,  was  assaulted  and  injured  by  the  stew- 
ard and  some  of  the  table  waiters,  the  defendant,  as  a  common  carrier,  was 
held  liable  for  the  injury.    In  Craker  v.  Railway  Co.,  36  Wis.  657,  where  the 


524  CARRIERS    OP    PASSENGERS.  [Cll.   8 

willfnl  wrongful  acts  does  not  apply  in  case  of  violence  to  tres- 
passers."^ 

IVronqful  Acts  of  Fellow  Passengers  or  Others. 

It  is  a  carrier's  duty  to  protect  his  passengers  against  violence 
or  improper  conduct  from  fellow  passengers  or  outsiders,  so  far  as 
such  protection  can  be  furnished  in  the  exercise  of  ordinary  care 
and  foresight."*  There  is  no  such  privity  between  a  railway  com- 
pany and  a  passenger  as  to  make  it  liable  for  the  wrongful  acts  of 
the  passenger  upon  any  principle."^  But  if  a  passenger  receives 
injury,  which  might  have  been  reasonably  anticipated  or  naturally 

conductor  of  a  railroad  train  kissed  a  female  nassprijgpr  against  her  will,  the 
court  in  an  elaborate  opinion,  held  the  railroad  company  liable  for  compen- 
satory damages.  It  is  there  said:  "We  cannot  think  there  is  a  question  of 
the  respondent's  right  to  recover  against  the  appellant  for  a  tort  which  was 
a  breach  of  the  contract  of  carriage."  In  Sherley  v.  Billings,  8  Bush,  147, 
where  a  passenger  on  defendant's  boat  was  assaulted  and  injured  by  an  of- 
ficer on  the  boat,  the  defendant  was  held  liable.  See,  also,  McKinley  v. 
Railroad  Co.,  44  Iowa,  314,  and  New  Orleans,  St  L.  &  C.  R.  Ck).  v.  Burke, 
53  Miss.  200;  Chicago  &  E.  R.  Co.  v.  Flexman,  103  111.  546.  In  Goddard  v. 
Railway  Co.,  57  Me.  202,  in  discussing  this  question,  the  court  says:  "The 
caxTier's  obligation  is  to  carry  his  passenger  safely  and  properly,  and  to  treat 
him  respectfully;  and,  if  he  intrusts  the  performance  of  this  duty  to  his 
servants,  the  law  holds  him  responsible  for  the  manner  in  which  they  execute 
the  trust.  •  *  *  He  must  not  only  protect  his  passengers  against  the  vio- 
lence and  insults  of  strangers  and  copassengers,  but,  a  fortiori,  against  the 
violence  and  insults  of  his  own  servants.  If  this  duty  to  the  passenger  is 
not  performed, — if  this  protection  is  not  furnished,  but.  on  the  contrary,  the 
passenger  is  assaulted  and  insulted  through  the  negligence  of  the  carrier's 
servant,  the  carrier  is  necessarily  responsible."  Chicago  &  E.  R.  Co.  v.  Flex- 
man,  103  lU.  546. 

171  Marion  v.  Railroad  Co.,  59  Iowa,  428. 

172  Pittsburgh,  Ft  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St  512:  New  Orleans, 
St.  L.  &  C.  R.  Co.  V.  Burke,  53  Miss.  200;  Felton  v.  Railroad  Co.,  69  Iowa, 
577,  29  N.  W.  018;  Britton  v.  Railway  Co.,  88  N.  C.  536;  Putnam  v.  Railroad 
Co.,  55  N.  Y.  108;  Batton  v.  Railroad  Co.,  77  Ala.  591;  Chicago  &  A,  R.  Co. 
V.  Pillsbury,  123  111.  9,  14  N.  E.  22;  Pittsburg  &  C.  R,  Co.  v.  PiUow,  76  Pa. 
St.  510;   Tbomp.  Carr.  Pass.  295-305. 

178  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St.  512.  Nor  will  the 
wrong  or  negligence  of  the  carrier  be  imputed  to  the  passenger,  so  as  to  bar 
his  remedy  against  a  third  persoa.  Little  v.  Hackett,  116  U.  S.  366,  6  Sup. 
Ct  39L 


§§    112-113]  INJURIES    TO    PASSENGERS.  525 

expected,  from  one  who  is  improperly  received,  or  permitted  to  con 
tinne  as  a  passenger,  the  carrier  is  responsible.*'* 

Stattonal  Facilities. 

It  is  the  carrier's  duty  to  exercise  due  care  to  make  its  stations, 
wharves,  and  approaches  thereto  safe  for  passengers.  A  distinc- 
tion is  to  be  observed  between  the  degree  of  care  to  be  exercised 
in  the  construction  and  maintenance  of  tracks  and  running  ma- 
chinery by  railroad  corporations  and  the  degree  of  care  to  be  ex- 
ercised with  regard  to  stational  facilities.  As  to  the  former,  the 
carrier  is  held  to  the  use  of  the  utmost  possible  care  in  discover- 
ing and  remedying  defects  therein.^ ''^  As  to  the  latter,  the  car- 
rier is  liable  only  for  the  want  of  ordinary  care.^'^"  Thus,  it  was 
said  in  a  New  York  case  ^^"^  that  as  to  "the  approaches  to  the  cars, 
such  as  platforms,  halls,  stairways,  and  the  like,  a  less  degree  of 
care  is  required,  and  for  the  reason  that  the  consequences  of  a 
neglect  of  the  highest  skill  and  care  which  human  foresight  can 
attain  to  are  naturally  of  a  much  less  serious  nature.  The  rule  in 
such  cases  is  that  the  carrier  is  bound  simply  to  exercise  ordinary 
care  in  view  of  the  dangers  to  be  apprehended."  The  failure  to 
properly  light  the  platform,^''*  allowing  snow  and  ice  to  accumu- 
late *■'•  or  other  obstructions  ^*°  to  remain  thereon,  or  such  a  con- 

174  Putnam  v.  Railroad  Ck)..  55  N.  Y.  108;  Flint  v.  Transportxition  Co.,  34 
Conn.  554;  Pittsburgh,  m.  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St  512;  Flint 
v.  Transportation  Co.,  6  Blatchf.  158,  Fed.  Cas.  No.  4,873. 

175  Hutch.  Carr.  §  521i,.    See  ante,  p.  519. 

176  Palm„T  V.  Pennsylvania  Co.,  Ill  N.  Y.  488,  18  N.  E.  859;  Moreland  v. 
Railroad  Corp.  141  Mass.  31,  6  N.  E.  225. 

17  7  KeUy  V.  Railroad  Co.,  112  N.  Y.  443,  20  N.  E.  383. 

178  Jamison  v.  Railroad  Co.,  55  Cal.  593;  Peniston  v.  Railroad  Co.,  34  La. 
Ann.  777,  Patten  v.  Railway  Co.,  32  Wis.  524,  36  Wis.  413;  Beard  v.  Rail- 
road Co.,  48  Vt.  101;  Buenemann  v.  Railway  Co.,  32  Minn.  390,  20  N.  W.  379; 
Dice  V.  Locks  Co.,  8  Or.  GO. 

179  Memphis  &  C.  R.  Co.  v.  Whitfield,  44  Miss.  4GG;  Weston  v.  Railroad 
Co.,  42  N.  Y.  Super.  CL  156;  Seymour  v.  Railway  Co.,  3  Biss.  43,  Fed.  Cas. 
No.  12,685. 

180  Osbom  V.  Ferry  Co.,  53  Barb.  629;  Martin  v.  Railway  Co.,  16  C.  B.  179. 
Holes  In  platform.  Knight  v.  Railroad  Co.,  56  Me.  234;  Chicago  &  N.  W.  Ry. 
Co.  V.  Fillmore,  57  HI.  265;  Liscomb  v.  Transportation  Co.,  6  Lans.  (N.  Y.) 
75.    Passengers  obliged   to  cross   tracks,   Keating  v.   Railroad   Co.,  3  Lans. 


526  CARRIERS    OF    PASSENGERS.  [Ch.   8 

struction  that  part  of  a  moving  train  projects  over  the  platform,*'* 
have  been  held  to  constitute  negligence  for  which  the  carrier  is 
liable. 

Presumption  of  Negligence — How  Rebutted. 

Proof  of  an  accident,  not  resulting  from  the  act  of  the  passenger, 
is  suflScient  to  raise  a  presumption  of  actionable  negligence  on 
the  part  of  the  carrier.^®^  This  is  merely  a  presumption  of  fact, 
and  may  be  rebutted.  But  the  burden  of  doing  so  rests  on  the 
carrier.*  The  presumption  may  be  rebutted  by  showing  that  the 
accident  was  caused  solely  by  the  act  of  God  ^*^  or  the  public 
enemy. ^^*  But,  where  the  carrier's  negligence  has  contributed  to 
the  injury,  the  carrier  will  be  liable,  although  an  act  of  Godwas 
the  immediate  canae.*'°  The  principles  involved  here  are  not  dif- 
ferent from  those  applicable  to  carriers  of  goods.^*' 

The  carrier  may  also  rebut  the  presumption  of  negligence  by 

(N.  Y.)  469;  Baltimore  &  O.  R.  (Do.  v.  State,  GO  Md.  449;  Klein  v.  Jewett, 
26  N.  J.  Eq.  474. 

181  Langan  v.  Railway  C!o.,  72  Mo.  392;  Chicago  &  A.  R.  C5o.  v.  Wilson,  63 
111.  167;   Dobiecki  v.  Sharp,  88  N.  Y.  203. 

182  Christie  v.  Griggs,  2  Camp.  79;  Philadelphia  &  R.  R.  Co.  v.  Anderson, 
94  Pa.  St  351;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Thompson,  107  Ind.  442, 
8  N.  E.  18;  Seybolt  v.  Railroad  Co.,  95  N.  Y.  562;  Feital  v.  Railroad  Co.,  109 
Mass.  398;  Cleveland,  C,  C.  &  I.  R.  Co.  v.  Walrath.  .38  Ohio  St.  461;  Mem- 
phis &  O.  R.  P.  Co.  V.  McCool,  83  Ind.  392;  Cleveland,  C,  C.  &  I.  R.  Co.  v. 
NeweU,  104  Ind.  264,  3  N.  E.  836;  The  Sydney,  27  Fed.  119;  Thomp.  Carr. 
Pass.  181-197.    See,  also,  Tompkins  v.  Railroad  Co.,  66  Cal.  163,  4  Pae.  1165. 

*Laing  v.  Colder,  8  Pa,  St  482;  Sullivan  v.  Railroad  Co.,  30  Pa.  St.  234: 
Shear.  &  R.  Neg.  §  280;  Redf.  R.  R.  §  1760,  and  notes;  Meier  v.  Railroad  Co., 
64  Pa.  St.  225. 

183  Philadelphia  &  R,  R.  Co.  v.  Anderson,  94  Pa.  St  351;  Pittsburgh,  Ft 
W.  &  C.  Ry.  Co.  v.  Brigham.  29  Ohio  St.  374;  International  &  G.  N.  R.  Co. 
V.  Ilalloren,  53  Tex.  46;  Memphis  &  C.  R.  Co.  v.  Reeves,  10  Wall.  176;  Gates 
V.  Railway  Co.,  28  Minn.  110,  9  N.  W.  579;  Houston  &  T.  C.  Ry.  Co.  v.  Fowler. 
56  Tex.  452;  Ely  v.  RaUway  Co.,  77  Mo.  34;  McPadden  v.  Railroad  Co.,  44 
N.  Y.  478.     Cf.  Kansas  Pac.  Ry.  Co.  v.  Miller,  2  Colo.  442. 

184  Sawyer  v.  Railroad  Co.,  37  Mo.  240. 

18B  Philadelphia  &  R.  R.  Co.  v.  Anderson,  94  Pa.  St  356;  Davis  v.  Railroad 
Co.,  55  Vt  M;  Ellet  v.  Railway  Co.,  76  Mo.  518;  Pruitt  v.  Railroad  Co.,  62 
Mo.  527. 

»••  See  ante,  p.  401. 


•§j)    lJ2-lloJ  INJURIES    TO    PASSENGERS.  527 

showing  that  it  was  not  due  to  negligence  on  his  part.*''  Carriers 
of  passengers  are  not  liable  for  iniuries  caused  by  inevitnhip  arr.\- 
dent,  or  such  as  no  human  foresight  could  avert.""  The  carrier  is 
not  liable  for  injuries  caused  solely  by  the  act  of  the  injured  per- 
son/'® or  by  a  third  person,  unconnected  with  the  carrier  in  any 
way.*'**  Bnt^where  the  carrier  has  been  negligent,  the  fact  that 
the  wrong  of  a  third  person  contributed  to  cause  the  injury  is  no 
defense. 

The  presumption  of  liability  may  also  be  rebutted  by  showing 
that  the  passenger  was  guilty  of  contributory  negligence.  But 
where  the  passenger's  negligence  was  known  to  the  carrier,  and  the 
injury  might,  by  the  subsequent  use  of  care  and  prudence  on  the 
part  of  the  carrier,  have  been  avoided,  the  latter  is  liable  in  spite  - 
of  the  contributory  negligence  of  the  passenger.*®*   X*^*-^  CUuf^^  VU^M.e£^ 

187  stokes  V.  SaltonstaJl,  13  Pet.  181;  Railroad  Ck).  v.  Pollard,  22  WaU.  341; 
Pershing  v.  Railway  Co.,  71  Iowa,  561.  32  N.  W.  488. 

188  Atchison  &  N.  R.  Ck).  v.  Flinn,  24  Kan.  627;  Beach  v.  Parmeter,  23  Pa. 
St  196. 

189  Gulf,  C.  &  S.  F.  R.  Co.  V.  Wallen,  65  Tex.  5G8.  See,  as  to  general  prin- 
ciple, Kleimenhagen  v.  Railway  Co.,  65  Wis.  66,  26  N.  W.  264;  Woolf  v. 
Beard,  8  Car.  &  P.  373;  Caswell  v.  Worth,  5  EL  &  Bl.  849;  Evansville  &  C. 
R.  Co.  V.  Hiatt,  17  Ind.  102.  See,  also,  Eckert  v.  Railroad  Co.,  43  N.  Y.  502; 
Chicago,  B.  &  Q.  R.  Co.  v.  Landauer,  39  Neb.  803,  58  N.  W.  434;  Illinois  Cent 
R.  Co.  V.  Davidson,  12  C.  C.  A.  118,  64  Fed.  301;  collection  of  authorities  on 
contributory  negligence  by  passengers,  58  Am.  &  Eng.  R.  Cas  326,  336,  358, 
375,  393,  410. 

180  Curtis  v.  Railroad  Co.,  IS  N.  Y.  534;  Pittsburgh,  Ft  W.  &  C.  Ry.  Co.  v. 
Hinds.  53  Pa.  St  512;  Keeley  v.  Railway  Co.,  47  How.  Prac.  257;  Harris  v. 
Railroad  Co.,  13  Fed.  591;  Reedie  v.  Railroad  Co.,  4  Exch.  244;  Daniel  v. 
Railway  Co.,  L.  R.  3  C.  P.  216,  591. 

191  Illinois  Cent  R.  Co.  v.  Green,  81  111.  19;  Pennsylvania  R.  Co.  v.  Laugdon. 
92  Pa.  St  21;  Dunn  v.  Railway  Co.,  58  Me.  187,  Blake  v.  Railway  Co.,  78 
Iowa,  57,  42  N.  W.  580;  Morrison  v.  Railway  Co.,  56  N.  Y.  302;  Filer  v.  Rail- 
road Co.,  59  N.  Y.  251;  Burrows  v.  Railway  Co..  63  N.  Y.  556;  Ohio  &  M.  Ry. 
Co.  V.  Stratton,  78  111.  88;  Railroad  Co.  v  Gladu^on,  15  Wall.  401;  Pennsyl- 
vania Co.  V.  Langcndorff,  48  Ohio.  316,  28  N.  E  172;  Chicago  &  A.  R.  Co.  v. 
Oretzner,  46  111.  74;  Boland  v.  Railroad  Co.,  36  Mo.  484;  Morrissey  v.  Ferry 
Co.,  43  Mo.  380;  Meeks  v.  Railroad  Co.,  56  Cal.  513;  State  v.  Railroad  Co.,  24 
Md.  84;  Kean  v.  Railroad  Co.,  61  Md.  154;  Button  v.  Raih^ad  Co.,  18  N.  Y. 
248.  As  to  when  negligence  of  parent  or  guardian  will  be  imputed  to  child, 
«ee  Ohio  &  M.  Ry.  Co.  v.  Stratton,  78  IlL  88;   Waite  v.  Railway  Co.,  EL,  BL  & 


528  CARRIERS    OF    PASSENGERS.  *  [Ch.   8 

Duty  to  Persons  not  Passengers. 

But  a  carrier  is  bound  to  the  exercise  of  only  ordinary  care  to- 
wards persons  coming  to  tlieir  stations  to  meet  passengers  expected 
to  arrive  or  escorting  those  departing,^ °-  The  same  degree  of  care 
is  required  towards  other  persons  lawfully  on  the  carrier's  prem- 
ises, such  as  passengers  of  another  carrier,  with  whom  a  station  is 
jointly  occupied;  ^°^  a  hackman  who  brings  a  passenger  to  the 
station;  ^^*  or  employes  of  another  carrier  properly  present  in  the 
performance  of  their  duties. ^^' 

El.  719;  Schindler  v.  Railway  Ck).,  87  Mich.  400,  49  N.  W.  670;  Wymore  v. 
Mahaska  Co.,  78  Iowa,  396,  43  N.  W.  264.  The  negligence  of  the  carrier  will 
not  be  Imputed  to  the  passenger  in  an  action  by  the  latter  against  a  third 
person.  Chapman  v.  Railroad  Co.,  19  N.  Y.  341;  Bennett  v.  Transportation  Co., 
36  N.  J.  Law,  225;  Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  391;  Tompkins  v. 
Railroad  Co.,  66  Cal.  163,  4  Pac.  1165;  Thomp.  Carr.  273-294;  Dean  v.  Railroad 
Co.,  129  Pa.  St  514,  IS  Atl.  718;  Becke  v.  Railway  Co.,  102  Mo.  544,  13  S.  W. 
1053;  Elyton  Land  Co.  v.  Mingea,  89  Ala.  521,  7  South.  666.  Under  the  doctrine 
of  comparative  negligence,  in  Illinois,  Georgia,  and  Tennessee,  a  recovery  may 
sometimes  be  had  although  plaintiff  was  guilty  of  contributory  negligence. 
Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Wallace,  110  lU.  114;  Galena  &  C.  U.  R.  Co.  v. 
.Jacobs,  20  111.  478;  Atlanta  &  R.  A.  L.  Ry.  Co.  v.  Ayers,  53  Ga.  12;  Central  R. 
Co.  V.  Gleason,  69  Ga,  200;  Augusta  &  S.  R.  Co.  v,  McElmurry,  24  Ga.  75; 
Nashville  &  C.  R.  Co.  v.  Carroll,  6  Heisk.  347;  Railroad  Co.  v.  Walker,  11 
Heisk.  383;    Louisville,  N.  &  G.  S.  R.  Co.  v.  Fleming,  14  Lea,  128. 

192  Dowd  V.  Railway  Co.,  84  Wis.  105,  54  N.  W.  24;  Doss  v.  Railroad  Co., 
59  Mo.  27;  Railway  Co.  v.  Lawton,  55  Ark.  428, 18  S.  W.  543;  McKone  v.  Rail- 
road Co.,  51  Mich.  601,  17  N.  W.  74;  Langan  v.  Railway  Co.,  72  Mo.  392;  Stiles 
V.  Railroad,  65  Ga.  370;  Tobin  v.  Railroad  Co.,  59  Me.  183;  Yarnell  v.  Railroad 
Co.,  113  Mo.  570,  21  S.  W.  1;  Hamilton  v.  Railway  Co.,  64  Tex.  251;  Lucas  v. 
Railroad  Co.,  6  Gray,  64;  Griswold  v.  Railroad  Co.,  64  Wis.  652,  26  N.  W.  101; 
Texas  &  P.  R.  Co.  v.  Best,  66  Tex.  116,  18  S.  W.  224;  Missouri,  K.  &  T.  Ry.  Co. 
V.  Miller  (Tex.  Civ.  App.)  27  S.  W.  905;   Gautret  v.  Egerton,  L.  R.  2  C.  P.  371; 

.Ukins  V.  Railway  Co.,  37  L.  T.  (N.  S.)  193. 

193  Tebbutt  V.  Railway  Co.,  L.  R.  6  Q.  B.  73. 
104  Tobin  v.  Railroad  Co.,  59  Me.  183. 

18B  Railroad  Co.  v.  Armstrong,  49  Pa.  St.  186;  Philadelphia,  W.  &  B.  R.  Co. 
V.  State,  58  Md.  374;  Illinois  Cent.  R.  Co.  v.  Frelka,  110  111.  498;  Zeigler  v. 
Railroad  Co.,  52  Conn.  543;  Pennsylvania  Co.  v.  Gallagher,  40  Ohio  St.  637; 
In  re  Merrill,  54  Vt  200;  Vose  v.  Railway  Co.,  2  Hurl.  &  N.  728;  Graham  v. 
Railway  Co.,  18  a  B.  (N.  S.)  229;  Swainson  v.  Railway  Co.,  L.  R.  3  Exch. 
341;  Warburton  v.  Railway  Co.,  L.  R.  2  Exch.  30.  And  see.  as  to  con- 
•dgnors,  consignees,  and  their  agents  personally  assisting  in  the  reception  or 


§    114]  CONTRACTS    LIMITING    LIABILITY.  529 

A  railroad  company  is  not  liable  for  failure  to  exercise  ordinary 
care  and  skill  in  the  erection,  structure,  or  maintenance  of  its  sta- 
tion house  or  houses  as  to  persons  who  enter  or  are  at  the  same, 
not  on  any  business  with  the  company  or  its  agents,  nor  on  any 
business  connected  with  the  operation  of  its  road,  but  are  there 
without  objection  by  the  company,  and  therefore  by  its  mere  suf- 
ferance or  permission;^®®  as  where  a  person  takes  refuge  in  the 
station  house  during  a  storm,^*''  or  is  on  the  platform  as  a  mere 
sightseer.^** 

SAME— CONTRACTS  LIMITING  LIABILITY. 

114.  Carriers  of  passengers  cannot,  even  by  express  con- 
tract, limit  their  liability  for  their  own  or  their 
servants'  negligence. 
EXCEPTIONS— Some  courts  hold  that,  as  to  gratuitous 
passengers,  carriers  may  stipulate  against  liability 
for  ordinary,  but  not  for  gross,  negligence;  others, 
that  carriers  may  stipulate  against  liability  for  neg- 
ligence of  employes,  but  not  for  their  personal  neg- 
ligence. 

Substantially  the  same  considerations  are  applicable  where  car- 
riers of  passengers  seek  to  limit  their  liability  for  negligence  as  are 
applicable  where  carriers  of  goods  seek  to  limit  their  liability.^'" 

delivery  of  their  freight,  Holmes  v.  Railway'  Co.,  4  Exch.  254;  Wright  v. 
Railway  Co.,  L.  R.  10  Q.  B.  298,  1  Q.  B.  Div.  252  Allegheny  V.  R.  Co.  v. 
Findley,  4  Wkly.  Notes  Cas.  438;  Foss  v.  Railway  Co..  33  Minn.  392,  23  N.  W. 
553;  Watson  v.  Railway  Co.,  6G  Iowa,  1G4,  23  N.  W.  380;  Illinois  Cent  R.  Co. 
V.  Hoffman,  G7  111.  287;  Newson  v.  Railroad  Co..  29  N.  Y.  383;  New  Orleans, 
J.  &  G.  N.  R.  Co.  V.  Bailey,  40  Miss.  395;  Shelby ville,  L.  B.  R.  Co.  v,  Lewark. 
4  Ind.  471;  Shelbyville,  L.  B.  R.  Co.  v.  Lynch,  4  Ind  494;  Dufour  v.  Railroad 
Co.,  67  Cal.  319,  7  Pac.  769;  Mark  v.  Railway  Co.,  32  Minn.  208,  20  N.  W.  131; 
Blakemore  v.  Railway  Co.,  8  El.  &  Bl.  1035;  Goldstein  v.  Railway  Co.,  40  Wis. 
404,  1  N.  W.  37;  Burns  v.  Railroad  Co..  101  Mass.  50;  Rogstad  v.  Railway 
Co.,  31  Minn.  208,  17  N.  W.  287. 

196  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bingham.  29  Ohio  St  364;  Glllis  v. 
Railroad  Co.,  59  Pa,  St.  129;    Illinois  Cent  R   Co.  v.  Godfrey,  71  IlL  500. 

187  Pittsburgh,  Ft  W.  &  C.  R.  Co.  T.  Bingham,  supra. 

i»8  Gillis  V.  Railroad  Co.,  supra. 

i»»  See  ante,  p.  413. 

LAW  BAILM. — 34 


530  CARRIERS    OF    PASSENGERS.  [Ch.   8 

Indeed,  the  public  policy  prohibiting  such  agreements  is  even 
stronger  in  the  case  of  passenger  carriers.  Life  and  limbs  are  of 
more  importance  than  property.  In  many  jurisdictions,  therefore, 
it  is  held  that  carriers  of  passengers  cannot,  even  by  special  con- 
tract, limit  their  liability  for  either  their  own  or  their  servants' 
negligence.^""  In  many  other  jurisdictions,  however,  such  con- 
tracts have  been  sustained  with  more  or  less  qualification  and  limi- 
tation. Contracts  of  this  sort,  to  be  held  valid,  must,  of  course,  be 
sustained,  by  a  consideration.'"^  It  is  usually  held  that,  where  a 
passenger  is  carried  for  hire,  a  contract  limiting  liability  is  abso- 
lutely void.  This  has  been  applied  to  cases  where  one  was  not 
really,  though  ostensibly,  carried  free,  as  where  one  traveled  on 
a  drover's  pass  or  the  like.^°^  But  there  has  been  much  conflict 
and  confusion  of  opinion  as  to  the  effect  of  a  limitation  of  liability 
contained  in  an  absolutely  free  pass.  As  has  been  seen,  public 
policy  requires  the  same  degree  of  care  towards  free  passengers  as 
towards  paying  ones.'"^  In  this  respect,  carriers  of  passengers 
differ  from  carriers  of  goods.  Many  courts  have  accordingly  held 
that,  even  as  to  free  passengers,  a  carrier  cannot  relieve  itself  of  lia- 

200  Railroad  Co.  v.  Lockwood,  17  Wall.  3G7;  Rose  v.  Railroad  Co.,  39  Iowa, 
246;  Cleveland,  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  St  1;  Jacobus  v.  Railway 
Co.,  20  Minn.  12.5  (Gil.  110);  Carroll  v.  Railway  Co.,  88  Mo.  239;  Gulf,  C.  &  S.  F. 
R.  Co.  V.  McGowan,  Go  Tex.  G40;  Thomp.  Carr.  378,  402;  Hutch.  Carr.  §§  581- 
58G;  Pennsylvania  R.  Co.  v.  Henderson,  51  Pa.  St.  315;  Ohio  &  M.  Ry.  Co.  v. 
Selby,47  Ind.471.  "So  far  as  the  consideration  of  public  policy  is  concerned.  It 
cannot  be  overridden  by  any  stipulation  of  the  parties  to  the  contract  of  pas- 
senger carriage,  since  it  is  paramount  from  Its  veiy  nature.  No  stipulation  of 
the  parties  in  disregard  of  it,  or  involving  its  sacrifice  in  any  degree,  can,  then,  be 
permitted  to  stand.  Whether  the  case  be  one  of  a  passenger  for  hire,— a  merely 
gratuitous  passenger, — or  of  a  passenger  upon  a  conditioned  free  pass,  the  in- 
terest of  the  state  in  the  safety  of  the  citizen  is  obviously  the  same."  Jacobus 
V.  Railroad  Co.,  20  Minn.  125  (Gil.  110). 

201  Seybolt  v.  Railroad  Co.,  95  N.  Y.  562.  Express  messenger,  Brewer  v. 
Railroad  Co.,  124  N.  Y.  59,  26  N.  E.  324;  Bates  v.  Railroad  Co.,  147  Mass.  255, 
17  N.  E.  033. 

202  Lawson,  Bailm.  §  247;  Railroad  Co.  v.  Lockwood,  17  Wall.  357;  Cleve- 
land, P.  &  A.  R.  Co.  V.  Curran,  19  Ohio  St.  1;  Knowlton  v.  Railway  Co.,  Id. 
260;  Pennsylvania  R.  Co.  v.  Henderson,  51  Pa.  St.  315;  Lawson  v.  Railway 
Co.,  64  Wis.  447,  24  N.  W.  618;  Tibby  v.  Railway  Co.,  82  Mo.  292;  Railway 
Co.  v.  Stevens,  95  U.  S.  655. 

»0  8  See  ante,  497. 


■>   V 


§    114]  CONTKACTS    LIMITING    LIABILITY.  531 

bility  of  its  own  or  its  servants'  negligence.*"*  Other  courts  have 
held  that,  as  to  free  passengers,  a  carrier  may,  by  express  contract, 
stipulate  against  liability  for  the  negligence  of  its  employes,  as 
distinguished  from  its  personal  negligence,"'*  even  though  the  neg- 
ligence be  gross.^"®  In  other  jurisdictions  the  rule  is  that  the  car- 
rier may  Contract  against  the  negligence  of  its  servants  only  when 
it  is  not  gross  or  willful.''*'^  In  Wisconsin  a  carrier  may  contract 
against  liability  for  the  ordinary  negligence  of  its  servants,  unless 
the  same  is  expressly  made  a  crime.^*^* 

20*  Railroad  Co.  v.  Lock  wood,  17  Wall.  357;  Mobile  &  O.  R.  Co.  v.  Hopkins, 
41  Ala.  486;  Rose  v.  Railroad  Co.,  39  Iowa,  246;  .Tacobiis  v.  Railway  Co.,  20 
Minn.  125  (Gil.  110);  Bryan  v.  Railway  Co.,  32  Mo.  App.  228;  Buffalo,  P.  & 
W.  R.  Co.  V.  O'Hara,  12  Wkly.  Notes  Cas.  473;  Pennsylvania  R.  Co.  v.  But- 
ler, 57  Pa.  St.  335;   Camden  &  A.  R.  Co.  v.  Bausch  (Pa.  Sup.)  7  Atl.  731. 

206  Welles  V.  Railroad  Co.,  26  Barb.  041,  24  N.  Y.  181;  Perkins  v.  Railroad 
Co.,  24  N.  Y.  196;  Kinney  v.  Railroad  Co.,  32  N.  J.  Law,  407;  Bates  v.  Rail- 
road Co.,  147  Mass.  255,  17  N.  E.  633;  Quimby  v.  Railroad  Co.,  150  Mass.  305, 
23  N.  E.  205;  Griswold  v.  R- ilroad  Co.,  53  Conn.  371,  4  Atl.  261.  Where  tbero 
is  an  abatement  in  the  regular  fare,  see  Bissell  v.  Railroad  Co.,  25  N.  Y.  442; 
Poucher  v.  Railroad  Co.,  49  N.  Y.  203.  Purchase  of  seat  in  drawing-room 
car  by  one  riding  on  a  pass  does  not  make  him  a  passenger  for  hire,  and  he 
is  bound  by  a  limitation  of  liability  contained  in  the  pass.  Ulrich  v.  Railroad 
Co.,  108  N.  Y.  80,  15  N.  E.  60. 

206  Griswold  v.  Railroad  Co.,  53  Conn.  371,  4  Atl.  261;  Perkins  v.  Railroad 
Co.,  24  N.  Y.  196;  Bissell  v.  Railroad  Co.,  25  N.  Y.  442;  Kinney  v.  Railroad 
Co.,  32  N.  J,  Law,  407,  34  N,  J.  Law,  513.  Contra,  Higgins  v.  Railroad  Co., 
28  La.  Ann.  133.  In  New  York  the  special  conditions  are  sufhcient  to  ab- 
solve the  carrier  from  liability,  even  for  the  gross  negligence  of  his  em- 
ployes. Welles  V.  Railway  Co.,  24  N.  Y.  181;  Perkins  v.  Railway  Oj..  Id. 
190;  Bissell  v.  Railway  Co.,  25  N.  Y.  442.  In  New  Jersey  it  is  held  that  such 
conditions  are  good  as  against  ordinary  negligence,  with  a  very  decided  Inti- 
mation that  the  exemption  from  liability  comprehends  gross  negligence  also. 
Kinney  v.  Railroad  Co.,  34  N.  J.  Law,  513.  In  Pennsylvania,  Illinois,  Indiana, 
and  several  other  states  the  courts  hold  that  no  such  condition  will  avail 
to  protect  the  carrier  from  responsibility  for  the  gross  negligence  of  its  em- 
ployes. Illinois  Cent.  R.  Co.  v.  Read,  37  HI.  484;  Illinois  Cent.  R.  Co.  v.  Mor- 
rison, 19  111.  136;  Indiana  Cent.  Ry.  Co.  v.  Mundy,  21  Ind.  48;  Pennsylvania 
R.  Co.  V.  McCloskey's  Adm'r,  23  Pa.  St.  532;  Mobile  &  O.  Ry.  Co.  v.  Hop- 
kins, 41  Ala.  489;   Jacobus  v.  Railroad  Co.,  20  Minn.  125  (Gil.  110). 

207  Arnold  v.  Railroad  Co.,  83  111.  273;  Illinois  Cent  R.  Co.  v.  Read,  87 
111.  484;   Indiana  Cent.  Ry.  Co.  v.  Mundy,  21  Ind.  48. 

208  Annas  v.  Railroad  Co.,  67  Wis.  46,  30  N.  W.  282. 


^^^    ?^--^  %j^9-f  4. 


532  CARRIERS   OF    PASSENGERS.  [Ch.   8 


TERMINATION. 

115.  The  termination  of  the  exceptional  liability  of  a  pub- 
lic carrier  of  passengers  to  persons  transported  in 
his  vehicles  w^ill  be  considered  under  the  following 
heads: 

(a)  Ejection  from  vehicle  (p.  532). 

(b)  Alighting  at  station  (p.  537). 

(c)  Connecting  carriers  (p.  539). 

After  the  relation  of  passenger  and  carrier  is  established,  the 
arrier  can  terminate  it  only  by  fulfilling  his  contract  for  trans- 
portation, or  by  ejecting  the  passenger  for  misconduct.  This  will 
be  considered  in  the  next  section.  The  passenger,  however,  may 
terminate  his  relation  as  such  to  the  carrier  at  any  time  he  chooses 
hy  leaving  the  carrier's  vehicle  with  an  intention  of  abandoning 
his  rights  as  a  passenger.  He  may  do  this  even  though  he  has 
not  reached  the  point  to  which  his  contract  for  transportation  en- 
titles him  to  be  carried.^*^®  The  carrier's  liability,  however,  is  not 
terminated  by  the  passenger  leaving  the  train  or  other  conveyance 
for  a  temporary  purpose,^^"  as  to  procure  refreshments,*^^  or  in 
passing  from  one  of  the  carrier's  conveyances  to  another.*^*  Nor 
Joes  a  passenger  cease  to  be  such  by  rendering  assistance  to  the 
carrier  or  his  servants  in  case  of  an  accident.''^* 

209  Buckley  v.  Railroad  Co.,  IGl  Mass.  26,  36  N.  E,  583.  But  see  Johnson  v. 
Itailroad  Co.,  63  Md.  106. 

»io  Parsons  v.  Railroad  Co.,  113  N.  Y.  355,  21  N.  E.  145;  Keokuk  Packet 
Co.  V.  True,  88  111.  608;  Watson  v.  Railroad  Co.,  92  Ala.  320,  8  South.  770; 
Dice  V.  Transportation  Co.,  8  Or.  60;  Jeffersonville,  M.  &  I.  R.  Co.  v.  Riley. 
39  Ind.  568.    But  see  Johnson  v.  Railroad  Co.,  125  Mass.  75. 

211  Parsons  v.  Railroad  Co.,  113  N.  Y.  355,  363,  21  IS.  E.  145;  Dodge  v. 
Steamship  Co.,  148  Mass.  207,  19  N.  E.  373;  Hoebrik  v.  Carr,,29  Fed.  298; 
Penistou  v.  Railroad  Co.,  34  La.  Ann.  777;  Jeffersonville,  M.  &  I.  R.  Co.  v. 
Riley,  39  Ind.  568;    Pitcher  v.  Railroad  Co.,  55  Hun,  604,  8  N.  Y.  Supp.  389. 

21*  Northrup  v.  Assurance  Co.,  43  N.  Y.  516;  Hulbert  v.  Railroad  Co.,  40 
N.  Y.  145. 

«i»  Mclntire  Ry.  Co.  v.  Bolten,  43  Ohio  St.  224,  1  N.  E.  333. 


§§    11G-Ii8]  TERMINATION EJECTION    FROM    VEHICLE.  588 


SAME— EJECTION  FROM  VEHICLE. 

116.  A  carrier  may  terminate  his  liability  to  a  passenger 

by  ejecting  him  from  his  vehicle  for  improper  con- 
duct or  a  refusal  to  comply  with  the  carrier's  proper 
regulations. 

117.  The    ejection  may   be  at   any  place,  except   in   some 

states,  by  statute,  where  it  must  be  at  a  station  or 
near  a  d"wrelling  house. 

118.  In  ejecting  a  passenger   no  more  force   is  to  be  used 

than  is  necessary  to  accomplish  that  purpose,  and 
it  must  not  be  done  in  a  manner  which  will  en- 
danger the  passenger's  safety. 

For  What  Causes. 

It  has  already  been  seen  that  a  public  carrier  of  passengers  is 
entitled  to  his  compensation  before  the  termination  of  the  jour- 
ney,^^*  and  that  he  may  make  reasonable  regulations  as  to  the 
conduct  of  the  passenger.^^^  If  a  passenger  refuses  to  pay  his 
fare,^^"  or  to  comply  with  the  carrier's  proper  regulations,  he  may 
be  ejected. ^^''  So  the  carrier  has  a  right  to  eject  from  his  vehicle 
a  passenger  who  so  conducts  himself  that  he  is  offensive  or  dan- 
gerous to  other  passengers.^ ^*    Such  conduct  is  usually  forbidden  by 

214  Ante.  p.  507. 

215  Ante,  p.  514. 

216  Ohio  &  M.  R.  Co.  V.  Muhling,  30  111.  9;  Pittsbnrsh,  C.  &  St.  L.  Ry.  Co. 
V.  Dewin.  86  111.  296;  Great  Western  Ry.  Co.  v.  Miller,  19  Mich.  305;  Gibson 
V.  Railroad  Co.,  30  Fed.  904;  O'Brien  v.  Railroad  Co.,  15  Gray,  20;  State  v. 
Campbell,  32  N.  J.  Law,  309;  Wyman  v.  Railroad  Co.,  34  Minn.  210.  25  N. 
W.  349;  Lillis  v.  Railroad  Co.,  64  Mo,  464;  Grogan  v.  Railway  Co.  (W.  Va.) 
19  S.  E.  593.    Cf.  Ramsden  v.  Railroad  Co.,  104  Mass.  117. 

217  Illinois,  etc.,  R.  Co.  v.  Whittemore,  43  111.  420;  McClure  v.  Railroad  Co. 
34  Md.  532;    Denver  Tramway  Co.  v.  Reed,  4  Colo.  App.  500,  36  Pac.  557. 

218  Vinton  V.  Railroad  Co.,  11  Allen,  304;  Sullivan  v.  Railroad  Co.,  148 
Mass.  119,  18  N.  W.  678;  Murphy  v.  Railway  Co.,  118  Mass.  228;  Baltimore. 
P.  &  C.  R.  Co.  V.  McDonald,  68  Ind.  316;  Peavy  v.  Railroad  Co.,  81  Ga.  48R 
8  S.  E.  70;  Chicago  City  Ry.  Co.  v.  PelleUer,  134  IlL  120,  24  N.  B.  770. 


634  CARRIERS    OF   PASSENGERS.  [Ch.  8 

the  regulations  of  the  carrier,  and  has  been  discussed  under  that 

head."' 

Re-entry  after  Ejection. 

Although  a  passenger  refuses  to  pay  his  fare  or  to  comply  with 
some  proper  rule  of  the  carrier,  he  may  nevertheless  tender  the  sum 
demanded,  or  offer  compliance  with  the  regulation  at  any  time  be- 
fore the  carrier  or  his  servant  has  begun  to  eject  him.  In  such  case 
the  carrier  is  bound  to  accept  the  passenger's  offer,  and  to  permit 
him  to  continue  his  journey.^^"  But  when  the  passenger  persists 
in  his  refusal  until  steps  are  taken  to  eject  him, — such  as  by  stop- 
ping a  train, — an  offer  to  comply  with  the  carrier's  demand  comes 
too  late,  and  the  carrier  may  complete  the  expulsion.^  ^^  So,  if  the 
passenger  has  been  ejected  from  the  carrier's  vehicle  for  nonpay- 
ment of  fare,  he  cannot  then  tender  payment,  and  insist  on  being 
carried,  if  the  ejection  was  at  some  point  not  a  station.^"  If  the 
rightful  expulsion  takes  place  at  a  station,  it  is  not  an  unreason- 
able rule  that  the  person  expelled  should  pay  the  fare  over  the  dis- 
tance already  traveled  before  he  can  purchase  a  ticket  from  such 
station  for  the  remainder  of  the  journey  which  will  entitle  him  to 
be  carried  on  the  same  train. ^^" 

219  See  ante,  p.  514. 

220  Hutch.  Carr.  (2d  Ed.)  §  591a.  Ham  v.  Canal  Co.,  142  Pa.  St.  617,  21 
Atl.  1012;  O'Brien  v.  Railroad  Co.,  80  N.  Y.  236;  Railroad  Co.  v.  Garrett, 
8  Lea,  438;  Texas  &  P.  Ry.  Co.  v.  Bond,  62  Tex.  442;  South  Carolina  R.  Co. 
V.  Nix,  68  Ga.  572. 

221  Hibbard  v.  Railroad  Co.,  15  N.  Y.  455;  O'Brien  v.  Railroad  Co.,  80  N. 
Y.  236;  Pease  v.  Railroad  Co.,  101  N.  Y.  367,  5  N.  E.  87;  Hoffbauer  v.  Rail- 
road Co.,  52  Iowa,  344,  3  N.  W.  121;  State  v.  Campbell,  32  N.  J.  Law,  309; 
Railroad  Co.  v.  Skillroan.  39  Ohio  St.  444;  Pickens  v.  Railroad  Co.,  104  N.  C. 
312,  10  S.  E.  556;  Clark  v.  Railroad  Co.,  91  N.  C.  506;  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Dwelle,  44  Kan.  394,  24  Pac.  500;  LouisviUe,  N.  &  G.  S.  R.  Co.  v. 
Harris,  9  Lea  (Tenn.)  180;  Galveston,  etc.  Ry.  Co.  v.  Turner  (Tex.  Civ.  App.) 
23  S.  W.  83;    Harrison  v.  Fink,  42  Fed.  787. 

222  O'Brien  v.  Railroad  Co.,  15  Gray,  20.  But  see  Ferguson  v.  Railroad  Co., 
98  Mich.  533,  57  N.  W.  801;  O'Brien  v.  Railroad  Co.,  80  N.  Y.  236;  Pickens 
V.  Railroad  Co.,  104  N.  C.  312,  10  S.  E.  556. 

228  Swan  V.  Railroad  Co.,  132  Mass.  116;  Stone  v.  Railroad  Co.,  47  Iowa, 
82;  Pennington  v.  Railroad  Co.,  62  Md.  95;  O'Brien  v.  Railroad  Co.,  80  N.  Y. 
236.    But  see  Ward  v.  Railroad  Co.,  56  Hun,  268.    In  State  v.  Campbell,  32 


§5    llG-118]         TERMINATION — EJECTION    FROM    VEHICLE.  535 

If  the  carrier  has  received  part  of  the  fare  demanded, — as  whore 
the  passenger  pays  the  price  of  a  ticket,  but  refuses  to  pay  an  ad- 
ditional sum  demanded  of  those  not  having  tickets, — the  amount 
paid  must  be  refunded  before  there  is  a  right  to  eject  him.'^^* 

Place  of  Ejection. 

By  the  common  law,  when  a  cause  exists  for  which  a  carrier  may 
eject  a  passenger,  the  carrier  is  not  bound  to  wait  until  he  has 
reached  a  regular  stopping  place.  For  instance,  a  railway  train 
may  be  stopped  anywhere  between  stations,  and  an  offending  pas- 
senger put  off.""  In  a  number  of  states,  however,  it  is  now  pro- 
vided by  statute  that  passengers  may  be  ejected  only  at  stations, 
or  near  some  dwelling  house.^'*' 

N.  J.  Law,  309,  the  passenger  had  an  excursion  ticket  from  New  Brunswick 
to  New  York,  good  for  a  single  day,  which  had  passed,  and  the  ticket  was 
thus  exhausted.  He  had  also  a  regular  ticket,  which  entitled  him  to  a  passage 
between  the  same  points.  The  latter  ticket  he  kept  in  his  pocket,  refused  to 
exhibit  any  other  than  the  exhausted  ticket,  and  was  ejected  from  the  cars 
at  Newark,  a  station  on  the  road.  He  then  exhibited  the  regular  ticket, 
which  would  have  entitled  him  to  the  passage  if  previously  shown,  and 
claimed  a  right  to  re-enter  the  cars.  His  previous  conduct  was  held  to  fully 
justify  his  exclusion  from  the  same  train. 

22  4  Bland  v.  Railroad  Co.,  55  Cal.  570.  But  see  HofCbauer  v.  Railroad  Co.,  52 
Iowa,  342,  3  N.  W.  121,  contra,  where  the  amount  paid  was  no  more  than 
the  carrier  was  entitled  to  for  the  distance  the  passenger  was  carried  before 
being  ejected.  And  compare  Burnham  v.  Railroad  Co.,  63  Me.  29S;  Cheney 
V.  Railroad  Co.,  11  Mete.  (Mass.)  121. 

225  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;  O'Brien  v.  Railroad  Co., 
15  Gray,  20;  Brown  v.  Railroad  Co.,  51  Iowa,  235,  1  N.  W.  487;  Wyman  v. 
Railroad  Co.,  34  Minn.  210,  25  N.  W.  349;  Lillls  v.  Railroad  Co.,  64  Mo.  464; 
Great  Western  Ry.  Co.  v.  Miller,  19  Mich.  305;  McClure  v.  Railroad  Co.,  34 
Md.  532. 

228  Wright  V.  Railroad  Co.,  78  Cal.  360,  20  Pac.  740;  Terre  Haute  v,  Van- 
atta,  21  111.  187;  Illinois  Cent.  R.  Co.  v.  Latimer,  128  111.  163,  21  N.  E.  7 
(but  see  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;  Toledo,  W.  &  W.  R. 
Co.  v.  Wright,  68  Ind.  586);  Texas  &  P.  R.  Co.  v.  Casey,  52  Tex.  112;  Bald- 
win V.  Railway  Co.,  64  N.  H.  596;  South  Florida  R.  Ck).  v.  Rhodes,  25  Fla.  40. 
5  South.  633;  Hobbs  v.  Railroad  Co.,  49  Ark.  357,  5  S.  W.  586.  A  commuta- 
tion railway  ticket,  conditioned  to  be  "good  for  1,000  miles,"  and  "within  six 
months,"  is  not  good  after  six  months,  although  the  holder  has  not  traveled 
1,000  miles  on  it;  and  where,  after  the  expiration  of  that  period,  he  enters 
the  baggage  car  of  the  company,  and  refuses  to  pay  his  fare  except  by  pre- 


536  CARRIERS   OF    PASSENGERS.  [Ch.  8 

Oircumstances  of  Ejection — Force  Used — Resistance. 

In  ejecting  the  passenger  from  the  carrier's  vehicle,  there  must 
be  no  wanton  disregard  of  the  passenger's  safety.  A  passenger 
must  not  be  put  off  at  a  distance  from  a  station  in  a  dangerous 
storm,  or  when  his  life  would  be  in  danger  from  the  severity  of  the 
weather.^^^  So  a  carrier  must  not  eject  the  passenger  in  a  dan- 
gerous place,^^^  nor  from  a  rapidly  moving  train."^  When  there 
is  a  right  to  eject  a  passenger,  no  more  force  is  to  be  used  than 
is  necessary  to  accomplish  that  purpose,  and  for  any  excessive  force 
or  willful  injury  the  carrier  is  liable.^^°  If  the  passenger  resists, 
sufficient  force  to  overcome  his  resistance  may  be  used.^^^  But 
when  it  is  wrongfully  attempted  to  eject  the  passenger,  as  from  a 
rapidly  moving  train,  or  under  circumstances  which  give  no  right 
to  eject  him,  the  passenger  may  resist,  and,  if  he  receives  injuries 
from  so  doing,  he  can  recover  therefor  from  the  carrier.^ ^^     It  must 

senting  such  ticket,  he  is  a  trespasser,  and  may  be  ejected  at  any  point,  and 
is  not  entitled  to  the  benefit  of  a  statute  which  prohibits  the  ejection  of  pas- 
sengers except  near  a  dwelling  house  or  at  a  station.  Lillis  v.  St  Louis,  K. 
C.  &  N.  R.  Co.,  64  Mo.  464. 

227  lUinois  Cent.  R.  Co.  v.  Latimer,  128  111.  163,  21  N.  B.  7;  Brown  v.  Rail- 
road Co.,  51  Iowa,  235,  1  N.  W.  487;  Louisville,  C.  &  L.  R.  Co.  v.  Sullivan,  81 
Ky.  624;  Toledo,  W.  &  W.  R.  Co.  v.  Wright.  68  Ind.  586;  Hall  v.  Railroad 
Co.,  28  S.  C.  261,  5  S.  E.  623. 

228  Gulf,  C.  &  S.  F.  R.  Co.  V.  Kirkbridge,  79  Tex.  457,  15  S.  W.  495;  Louis- 
ville &  N.  R.  Co.  V.  Ellis  (Ky.)  30  S.  W.  979;  Johnson  v.  Railroad  Co.  (Ala.) 
16  South.  75. 

229  Sanford  v.  Railroad  Co.,  23  N.  Y.  343;  State  v.  Kinney,  34  Minn.  311, 
25  N.  W.  705;  Brown  v.  Railroad  Co.,  66  Mo.  588;  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Kirkbridge,  79  Tex.  457,  15  S.  W.  495;    Fell  v.  Railroad  Co.,  44  Fed.  248. 

230  New  Jersey  Steamboat  Co.  v.  Brockett,  121  U.  S.  637,  7  Sup.  Ct.  1039; 
Holmes  v.  Wakefield,  12  Allen,  580;  Pennsylvania  R.  Co.  v.  Vandier,  42  Pa. 
St.  305;  Bass  v.  Railroad  Co.,  36  Wis.  450;  Mykleby  v.  Railway  Co.,  39  Minn. 
54,  38  N.  W.  763;  Evansville  &  I.  R.  Co.  v.  Gilmore.  1  Ind  App.  468,  27  N.  E. 
992;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kuenhle  (Tex.  App.)  16  S.  W.  177;  Knowles 
V.  Railroad  Co.,  102  N.  C.  59,  9  S.  E.  7;  Jardine  v.  Cornell,  50  N.  J.  Law,  485, 
14  Atl.  590;  Brown  v.  Railroad  Co.,  66  Mo.  .588;  Philadelphia,  W.  &  B.  R. 
Co.  V.  Larkin,  47  Md.  155.  But  see  Pittsburgh,  C,  C.  &  St,  L.  Ry.  Co.  v.  Russ, 
G  C.  C.  A.  597.  57  Fed.  822. 

231  Townsend  v.  Railroad  Co..  56  N.  Y.  295 

232  Sanford  v.  Railroad  Co.,  23  N.  Y.  343;  English  v.  Canal  Co.,  66  N.  Y, 
454;  Louisville,  N.  A.  &  a  R.  Co.  v.  Wolfe,  128  Ind.  347,  27  N.  E.  606.    In  the 


§    119]  TERMINATION ALIGHTING    AT    STATION.  537 

be  remembered,  however,  that  the  passenger's  ticket  is  conclusive 
between  the  passenger  and  the  conductor,^^'  and  when,  under  his 
ticket,  the  passenger  may  properly  be  ejected,  he  cannot  rightfully 
resist.*'*  It  is  probable  that  this  suggestion  harmonizes  the  ap- 
parent conflict  in  the  cases  on  this  point.**' 

SAME— ALIGHTING  AT  STATION. 

119.  After  reaching  his  destination,  a  passenger  is  entitled 
to  a  reasonable  time  and  opportunity  to  alight  from 
the  carrier's  vehicle  before  the  latter's  exceptional 
liability  is  terminated. 

When  a  carrier  of  passengers  has  transported  a  person  to  the 
place  designated  in  the  contract  of  carriage,  the  carrier  still  owes 
the  passenger  certain  duties  before  his  liability  is  terminated.  The 
carrier  must  stop  his  vehicle  at  his  usual  depot,  and  not  compel  the 
passenger  to  alight  before  reaching  it,^^°  nor  carry  him  beyond. ^^^ 
A  passenger  can  recover  for  injuries  sustained  by  alighting  at  a 
wrong  place  by  the  carrier's  invitation;  ^^^  as  where  the  name  of  a 

last  two  cases  the  passenger  had  paid  his  fare,  and  was  ejected  for  refusal  to 
pay  again.  He  was  in  each  case  permitted  to  recover  for  injuries  due  to  his 
resistance. 

28  3  See  ante,  p.  510. 

234  Townsend  v.  Railroad  Co.,  56  N.  Y.  295. 

23  5  See  Hutch.  Carr.  (2d  Ed.)  §  593;    Lawson   Bailm.  §  258. 

236  LouisvUle,  N.  A.  &  C.  Ry.  Co.  v.  Cook  (Ind.  App.)  38  N.  E.  1104;  Brulard 
V.  Albion,  45  Fed.  766;  Miller  v.  Railway  Co.,  93  Ga  630,  21  S.  E.  153;  Dud- 
ley V.  Smith,  1  Camp.  167. 

23  7  International  &  G.  N.  Ry.  Co.  v.  Terry,  62  Tex.  380;  Illinois  Cent.  R.  Co. 
v.  Able,  59  111.  131;  Illinois  Cent.  R.  Co.  v.  Chambers,  71  lU.  519;  Reed  v. 
Railway  Co.,  100  Mich.  507,  59  N.  W.  144;  East  Tennessee,  V.  &  G.  R.  Co.  v. 
Lockhart,  79  Ala.  315;  White  Water  R.  Co.  v.  Butler,  112  Ind.  598,  14  N.  E. 
599;  Alabama  G.  S.  R.  Co.  v.  Sellers,  93  Ala.  9,  9  South.  375;  Georgia  R.  Co.  v. 
MeCurdy,  45  Ga.  288;  Mobile  &  O.  R.  Co.  v.  McArthur,  43  Miss.  180;  New 
Orleans,  J.  &  G.  N.  R.  Co.  v.  Hurst,  36  Miss.  600,  Southern  R.  Co.  v.  Ken- 
drick,  40  Miss.  374;  Pordyce  v.  Dillingham  (Tex.  Civ.  App.)  23  S.  W.  550; 
Texas  &  P.  Ry.  Co.  v.  Mansell,  Id.  549. 

238  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Lucas,  119  Ind.  .583,  21  N.  E.  908;  Rich- 
mond City  Ry.  Co.  v.  Scott,  86  Va.  902,  11  S.  E.  404;  Thiladelpliia,  W.  &  B.  R. 
Co.  V.  McCormick,  124  Pa.  St  427,  10  Atl.  848;  Griffitli  v.  Pvailway  Co.,  OS  Mo. 


538  CARRIERS    OF    PASSENGERS.  [Ch.   <S 

station  is  announced,  and  the  vehicle  is  stopped  before  reaching  the 
usual  platform,  this  is  considered  an  invitation  to  alight.^^^  While 
it  is  not  the  duty  of  conductors  on  a  train  to  see  to  the  debarkation 
of  passengers,^*"  they  should  have  the  stations  announced;'*^  and 
they  should  stop  the  trains  sufificiently  long  for  the  passengers  for 
each  station  to  get  off.^*^  When  this  is  done,  their  duty  to  the 
passengers  is  performed.  All  assistance  that  a  conductor  may  ex- 
tend to  ladies  without  escorts  or  with  children,  or  to  persons  who 
are  sick,  and  ask  his  assistance  in  getting  on  and  off  trains,  is  purely 

168,  11  S.  W.  559;  Cockle  v.  Railway  Co.,  L.  R.  5  C.  P.  457,  L.  R.  7  C.  P.  321; 
Lewis  V.  Railway  Co.,  L.  R.  9  Q.  B.  G6;  Weller  \.  Railway  Co.,  L.  R.  9  C.  P. 
126;   Bridges  v.  Railway  Co.,  L.  R.  7  H.  L.  213. 

239  Columbus  &  I.  C.  Ry.  Co.  v.  Farrell,  31  Ind.  408;  Terre  Haute  v.  Buck, 
96  Ind.  346;  Philadelphia,  W.  &  B.  R.  Co.  v.  McCoriijick,  124  Pa.  St.  427,  16 
Atl.  848;  Philadelphia  &  R.  R.  Co.  v.  Edelsteic  (Pa.  Sup.)  16  AU.  847;  Mc- 
Nulta  V.  Ensch,  134  111.  46,  24  N.  E.  631;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Sain  (Tex. 
Civ.  App.)  24  S.  W.  958;  International  &  G.  N  R.  Co.  v.  Smith  (Tex.  Sup.)  14 
S.  W.  642;    Memphis  &  L.  R.  Ry.  Co.  v.  Stringfellow,  44  Ark.  322;    Richmond 

6  D.  R.  Co.  V.  Smith,  92  Ala.  237,  9  South.  223.  Mere  calling  out  name  of  the 
station  will  not,  under  all  circumstances,  be  an  in .  itation  to  alight.  Central 
R.  Co.  V.  Van  Horn,  38  N.  J.  Law,  133;    Smith  v.  Railway  Co.,  88  Ala.  538. 

7  South.  119;  England  v.  Railroad  Co.,  153  Mass.  490,  27  N.  E.  1;  Philadel- 
phia, W.  &  B.  R.  Co.  v.  Anderson,  72  Md.  519,  20  AtL  2;  International  & 
G.  N.  R.  Co.  v.  Eckford,  71  Tex.  274,  8  S.  W.  679. 

2*0  Nunn  v.  Railroad  Co.,  71  Ga.  710. 

241  Raben  v.  Railway  Co.,  73  Iowa,  579,  35  N.  W.  645;  Hurt  v.  Railway 
Co.,  94  Mo.  255,  7  S.  W.  1;  Southern  R.  Co.  v.  Kendrick,  40  Miss.  374;  Louis- 
ville, N.  O.  &  T.  R.  Co.  V.  Mask,  64  Miss.  738,  2  South.  360. 

242  Keller  v.  Railroad  Co.,  27  Minn.  178,  0  N.  W.  486;  Raben  v.  Railway 
Co.,  73  Iowa,  579,  35  N.  W.  645;  Hurt  v.  Railway  Co.,  94  Mo.  255,  7  S.  W.  1; 
Straus  V.  Railway  Co.,  75  Mo.  185;  Mississippi  &T.  R.  Co.  v.  Gill,  66  Miss.  39,  5 
South.  393;  Fairmount  &  A.  S.  P.  Ry.  Co.  v.  Stutler,  54  Pa.  St.  375;  Pennsyl- 
vania R.  Co.  V.  Kilgore,  32  Pa.  St.  292;  Mulhado  v.  Railroad  Co.,  30  N.  Y.  370; 
Ferry  v.  Railway  Co.,  118  N.  Y.  497,  23  N.  E.  822;  Baker  v.  Railway  Co.,  118  N. 
Y.  533,  23  N.  E.  885;  Wood  v.  Railway  Co.,  49  Mich.  370,  13  N.  W.  779;  Finn  v. 
Railway  Co.,  86  Mich.  74,  48  N.  W.  696.  If  one  about  to  alight  is-  injured  by 
the  premature  stai  Uug  of  a  train,  he  may  recover.  Washington  &  G.  R.  Co.  v. 
Harmon's  Adm'r,  147  U.  S.  571,  13  Sup.  Ct.  557;  Hill  v.  Railway  Co.,  158 
Mass.  458,  33  N.  E.  582;  Gilbert  v.  Railway  Co.,  160  Mass.  403,  36  N.  E.  60; 
Onderdonk  v.  Railway  Co.,  74  Hun,  42.  26  N.  Y.  Supp.  310;  Bernstein  v.  Rail- 
road Co.,  72  Hun,  46,  25  N.  Y.  Supp.  669;  Chicago  &  A.  R.  Co.  v.  Arnol,  144 
Ul.  261,  33  N.  E.  204;    lUinois  Cent.  R.  Co.  v.  Taylor,  46  111.  App.  141. 


§    120]  TEinilXATION CONNECTING    CARRIERS,  539 

a  matter  of  courtesy.^*"  It  is  not  the  conductor's  duty  to  go 
through  the  train  and  see  that  every  person  is  safely  passed  out  of 
the  cars.-**  He  is  not  bound  to  walv(»  sleeping  passengers,  and  in- 
form them  of  their  arrival  at  their  destination.^*"  Even  if  the  con- 
doctor  has  agreed  to  wake  a  passenger,  his  failure  to  do  so  will 
not  make  the  carrier  liable.^*"  If  a  sufficient  time  is  given  pas- 
sengers to  get  off  the  carrier's  vehicle,  and  they  fail  to  do  so,  they 
cannot  still  claim  the  rights  of  passengers,  and  the  carrier's  ex- 
ceptional liability  will  be  at  an  end.^*^  But  under  certain  cir- 
cumstances the  carrier's  relation  to  passengers  as  such  might  con- 
tinue until  they  have  a  sufficient  time  and  opportunity  to  leave  the 
station,  and  pass  off  the  carrier's  premises.-*' 

SAME— CONNECTING  CARRIERS. 

120.  When  a  passenger  is  received  for  transportation  over 
connecting  lines,  the  initial  carrier's  liability  ter- 
minates at  the  end  of  his  line,  though  he  may  by 
contract,  or  a  partnership  agreement,  become  liable 
for  through  transportation.  A  few  cases  hold  the 
carrier  liable  in  the  absence  of  such  contract. 

In  considering  the  termination  of  a  passenger  carrier's  liability 
where  connecting  carriers  are  concerned,  the  same  principles  are 

2*3  Nunn  V.  Raih-oad  Co.,  71  Ga.  710;  Raben  v.  Railroad  Co.,  73  Iowa,  579. 
35  N.  W.  645;    Id.,  74  Iowa,  732,  34  N.  W.  621 

244  Raben  v.  Railroad  Co.,  supra. 

246  Nunn  V.  Railroad  Co.,  71  Ga.  710;  Sevier  v.  Railroad  Co.,  61  Miss.  8; 
Texas  &  P.  Ry.  Co.  v.  Alexander  (Tex.  Civ.  App.)  30  S.  W.  1113.  But  a  sleep- 
ing-car company  is  boimd  to  awaken  passengers.  Pullman  Palace-Car  Co.  v. 
Smith,  79  Tex.  4(;S,  14  S.  W.  993. 

246  Sevier  v.  Railroad  Co.,  61  Miss.  8;  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v. 
Kendrick  (Tex.  Civ.  App.)  32  S.  W.  42. 

247  Imhoff  V.  Railroad  Co.,  22  Wis.  049;  Clotworthy  v.  Railroad  Co  ,  80  Mo. 
220;  Hurt  v.  Railway  Co.,  94  Mo.  255,  7  S.  W.  1;  Chicago,  K.  &  W.  R.  Co.  v. 
Frazer  (Kan.)  40  Pac.  923.  And  see  Coleman  v.  Banking  Co.,  84  Ga.  1,  10 
S.  E.  498. 

148  See  AUerton  v.  Railroad  Co.,  146  Mass.  241,  15  N.  E.  621,  and  compare 
Piatt  v.  Railroad  Co.,  4  Thomp.  &  C.  406. 


540  CARRIERS    OF    PASSENGERS.  [Ch.  8 

applicable  as  in  cases  of  carriers  of  goods.^*'  When  the  first  car- 
rier is  bound  to  transport  only  to  the  end  of  his  line,  his  liability 
to  a  passenger  is  terminated  when  that  point  is  reached.^'*"  If  the 
first  carrier  runs  his  trains  over  the  line  of  a  succeeding  carrier,  the 
liability  for  the  maintenance  of  tracks  and  the  operation  of  the  road 
is  the  same  as  for  the  carrier's  own  line.^"^  The  first  carrier  may,  of 
course,  contract  to  carry  the  passenger  to  his  destination,  though 
that  be  beyond  the  termination  of  his  own  line.*"^^  As  to  what  is  evi- 
dence of  such  a  contract,  the  same  conflict  exists  here  as  with  carriers 
of  goods.^'^'  In  some  cases  the  mere  sale  of  a  through  ticket  has  been 
held  to  make  the  first  carrier  liable;  that  is,  that  the  first  carrier  is 
prima  facie  liable  for  the  whole  transportation. '^^^  But  the  prevailing 
rule  is  that  such  a  ticket  is  only  evidence  to  be  considered  with  other 
circumstances  as  establishing  a  through  contract.^^"  Whether 
there  is  a  contract  or  not,  the  carrier  on  whose  line  the  injury  or 

2*^ee  knte,  p.  463. 

2  50  Hartan  v.  Railroad  Co.,  114  Mass.  44;  Pennsylvania  R.  CJo.  v.  Connell, 
112  m.  295;  Kerrigan  v.  Railroad  Co.,  81  Cal.  248,  22  Pac.  677;  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Roach,  35  Kan.  740,  12  Pac.  93. 

2  01  Great  Western  Ry.  Co.  v.  Blake,  7  Hurl.  &  N.  987;  Buxton  v.  Railway  Co., 
L.  R.  3  Q.  B.  549;  Thomas  v.  Railway  Co..  L.  R  5  Q.  B.  226.  And  see,  as  to 
a  bridge,  Birmingham  v.  Rochester  City  &  B.  R.  Co..  59  Hun,  583,  14  N.  Y. 
Supp.  13. 

2  62  Quimby  v.  Vanderbilt,  17  N.  Y.  306;  Van  Buskirk  v.  Roberts,  31  N.  Y. 
661;  Bussman  v.  Transit  Co.  (Super.  Ct  Buff.)  29  N.  Y.  Supp.  1066;  Carey  v. 
Railroad  Co.,  29  Barb.  35;  Candee  v.  Railroad  Co..  21  Wis.  582;  Cherry  v. 
Railroad  Co.,  1  Mo.  App.  Rep'r,  253;  Nashville  &  0.  R.  Co.  v.  Sprayberry,  9 
Heisk.  852;  Watkins  v.  Railroad  Co.,  21  D.  C.  1.  That  such  a  contract  is  not 
ultra  vires,  see  Buffett  v.  Railroad  Co.,  40  N.  Y.  168;  Bissell  v.  Railroad  Co., 
22  N.  Y.  258. 

2  63  See  ante,  p.  463. 

254  Illinois  Cent  R.  Co.  v.  Copeland,  24  111  332;  Najac  v.  Railroad  Co.,  7 
Allen,  329;  Wilson  v.  Railroad  Co.,  21  Grat.  654;  Candee  v.  Railroad  Co.,  21 
Wis.  582;  Carter  v.  Peck,  4  Sneed,  203.  The  English  cases  support  this  rule. 
Great  Western  Ry.  Co.  v.  Blake,  7  Hurl.  &  N.  987;  Mytton  v.  Railroad  Co.,  4 
Hurl.  &  N.  614. 

266  Hartan  v.  Railroad  Co.,  114  Mass.  44;  Pennsylvania  R.  Co.  v.  Connell, 
112  111.  295;  Youn^'  v.  Railroad  Co.,  115  Pa.  St  112,  7  Atl.  741;  NashvUle  & 
C.  R.  Co.  V.  Sprayberry,  9  Heisk.  852;  Kjiight  v.  Railroad  Co.,  56  Me.  234; 
Hood  V.  Railroad  Co.,  22  Conn.  1.  And  see  Brooke  v.  Railroad  Ca,  15  Mlch. 
832;    Kessler  v.  Railroad  Co.,  61  N.  Y.  538. 


§    120]  TERMINATION CONNECTING    CARRIERS.  541 

,delay  occurred  may,  of  course,  bf  «"pH  *»»  When  there  is  i  part- 
"nership  agreement  between  the  carriers,  each  one  is  liable  for  the 
defaults  of  any  of  the  members  of  the  partnership.**^  If  the  own- 
ers of  different  portions  of  a  public  line  of  travel,  by  an  agreement 
among  themselves,  appoint  a  common  agent  at  each  end  of  the 
route  to  receive  the  fare  and  give  through  tickets,  this  does  not 
of  itself  constitute  them  partners  as  to  passengers.*"' 

2  66  Schopman  v.  Railroad  Co.,  9  Cush.  24;  Chicago  &  R.  I.  R.  Co.  v.  Fahey. 
52  111.  81;  Johnson  v.  Railroad  Co.,  70  Pa.  St.  357.  But  see  Furstenheim  v. 
Railroad  Co.,  9  Heisk.  (Tenn.)  238. 

2  07  Bostwick  V.  Champion,  11  Wend.  571,  18  Wend.  175;  Wylde  v.  Railroad 
Co.,  53  N.  Y.  156;  Croft  v.  Railroad  Co.,  1  McArthur  (D,  C.)  492;  Waland  v. 
Elkins,  1  Starkie,  272;  Atchison,  T.  &  S.  F.  R.  Co.  v  Roach,  35  Kan.  740, 
12  Pac.  93. 

2  88  Elsworth  V.  Tartt,  20  Ala.  733.  And  see  Nashville  &  C.  R.  Co.  v.  Spray- 
berry,  8  Baxt.  (Tenn.)  341. 


^^*-^  ><^  fu^^^u^j^zn 


642  ACTIONS   AGAINST   CARRIERS.  [Ch.  9 

CHAPTER  IX. 

ACTIONS  AGAINST  CARRIERS. 


121. 

In  General. 

122. 

Actions  against  Carriers  of  Goods, 

123-126. 

The  Parties. 

127-128. 

Form  of  Action. 

129. 

Ttie  Pleadings. 

130. 

The  Evidence. 

131-137. 

The  Damages. 

138. 

Actions  against  Carriers  of  Passengers. 

IN  GENERAL. 

121.  Actions  against  carriers  -will  be  considered  under  two 

heads: 

(a)  Carriers  of  goods  (p.  542). 

(b)  Carriers  of  passengers  (p.  560). 

ACTIONS  AGAINST  CARRIERS  OF  GOODS. 

122.  Actions  against  carriers  of  goods  ■will   be  considered 

•with  reference  to — 

(a)  The  parties  (p.  542). 

(b)  The  form  of  action  (p.  551). 

(c)  The  pleadings  (p.  554). 

(d)  The  evidence  (p.  555). 

(e)  The  measure  of  damages  (p.  556). 

SAME— THE  PARTIES. 

123.  An  action  against  a  carrier  for  loss  of  or  damage  to 

goods  may  be  brought  by  the  person  entitled  to  the 
performance  of  the  duty  of  safe  transportation;  that 
is  to  say,  either — 

(a)  By  the  person  -with  whom  the  carrier  has  contracted 

(p.  543);  or 

(b)  By  the  owner  of  the  goods  (p.  548). 


§§    123-124]  CARRIERS    OF    GOODS PARTIKS.  543 

124.  To  be  more  specific,  the  folio-wring  rules  may  be  stated: 

(a)  Where  the  contract  for  transportation  is  directly  with 

the  consignor,  he  may  maintain  an  action  in  his  own 
name  for  a  breach;  but  the  recovery  is  for  the  bene- 
fit of  the  consignee,  if  the  latter  is  the  real  owner  of 
the  goods  (p.  543). 

(b)  Prima  facie  the  consignee  is  the  owner  of  the  goods, 

and  the  person  w^ith  whom  the  contract  is  made, 
and  therefore  entitled  to  sue  for  their  loss  or  dam- 
age.    But  this  presumption  may  be  rebutted  (p.  546). 

(o)  A  consignee  who  has  no  property  in  the  goods,  either 
general  or  special,  and  incurs  no  risk  in  their  trans- 
portation, cannot  maintain  an  action  for  their  loss 
or  damage  (p.  548). 

(d)  The  person  at  whose  risk  the  goods  are  carried, — 
that  is,  the  person  whose  goods  they  are,  and  who 
would  suffer  if  they  were  lost, — may  maintain  an 
action  therefor  (p.  548). 

Action  by  Person  Contracting  with  Carrier. 

It  is  sometimes  difficult  to  determine  who  is  the  proper  person 
to  sue  a  carrier  when  goods  received  for  carriage  have  been  lost  or 
damaged  or  unreasonably  delayed  in  the  delivery  under  circum- 
stances rendering  the  carrier  liable.  Sometimes  it  has  been  sup- 
posed to  depend  on  the  question  as  to  who  is  at  the  time  the  owner 
of  the  goods  for  damage  to  which  the  action  was  brought;  at 
others,  great  stress  has  been  laid  on  the  question  as  to  who  was 
to  pay  the  freight.  But  the  question  as  to  who  were  the  parties 
to  the  contract,  and  the  nature  of  that  contract,  have  not  always 
been  sufficiently  regarded.^  The  general  rule  is  that  the  action 
should  be  brought  by  the  person  entitled  to  the  performance  of  the 
duty.  Obviously,  the  person  with  whom  the  carrier  has  contracted 
to  transport  and  deliver  the  goods  is  entitled  to  the  performance 
of  such  duty,  and  under  the  rule  stated  may  maintain  an  action  on 
the  contract  for  a  breach  thereof.^      In  a  very  early  case  before 

1  Blanchard  v.  Page,  8  Gray,  281,  288. 

8  Swift  V.  Steamship  Co.,  lOG  N.  Y.  20G.  12  N.  E.  583;    Dows  v.  Cobb,  12 


644  ACTIONS    AGAINST   CARRIERS.  [Oil.   9 

Lord  Mansfield  (Davis  v.  James')  the  decision  was  properly  placed 
on  the  ground  that  the  defendants  were  liable  for  the  consequences 
to  the  original  consignors,  whether  the  property  was  in  them  or  not, 
because  the  carrier  agreed  with  them  to  carry  the  goods  safely,  and 
the  action  was  for  the  breach  of  that  agreement.  But,  not  long 
after,  the  case  of  Dawes  v.  Peck*  came  before  the  court,  was  much 
discussed,  and  has  long  been  considered  a  leading  case.  It  was  there 
rather  emphatically  stated  by  Lord  Kenyon  that  the  party  in  whom 
the  legal  interest  is  vested  is  the  proper  party  in  an  action  against  a 
carrier,  "for  he  is  the  person  who  has  sustained  the  loss  by  the  negli- 
gence of  the  carrier;  and  whoever  has  sustained  the  loss  is  the  proper 
party  to  call  for  compensation  from  the  person  by  whom  he  has  been 
injured."  This  was  followed  by  many  cases  decided  on  the  same 
grounds,  and  recognizing  the  case  of  Dawes  v.  Peck  as  an  authority.^ 
"But  this  opiniop  is  now  generally  dissented  from.  The  person  in 
whom  the  property  in  the  goods  is  vested  is,  it  has  been  said,  the 
proper  party  to  bring  the  action^  but  then  he  is  not  so  because  the 
property  is  vested  in  him,  but  because  from  that  circumstance  the  law 
presumes  that  he  is  the  party  who  really  contracts  with  the  carrier, 
and  that  any  other  person  employing  the  carrier  acts  only  as_jiis 

Barb.  310,  316;  Ohio  &  M.  R.  CJo.  v.  Emrich,  24  111.  App.  245;  Stafford  v. 
Walter,  67  lU.  83;  Great  Western  R  Co.  v.  McComas,  33  111.  185;  Illinois 
Cent.  R.  Co.  v.  Schwartz,  11  111.  App.  482,  487;  Blanchard  v.  Page,  8  Gray, 
281,  295;  Atchison  v.  Railway  Co.,  80  Mo.  213;  Harvey  v.  RaUroad  Co..  74 
Mo.  538;  Davis  v.  Jacksonville  S.  E.  Line  (ilo.  Sup.)  28  S.  W.  965;  Cantwell 
V.  Express  Co.,  58  Ark.  487,  25  S.  W.  503;  Hooper  v.  Chicago  &  N.  W.  Ry.  Co., 
27  Wis.  81;  Missouri  Pacific  Ry.  Co.  v.  Smith,  84  Tex.  348,  19  S,  W.  509; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Bamett  (Tex.  Civ,  App.)  26  S.  W.  782; 
Carter  v.  Graves,  9  Yerg.  (Tenn.)  446;  Goodwyn  v.  Douglas,  Cheves  (S.  C.) 
174;  Joseph  v.  Knox,  3  Camp.  320;  Moore  v.  Wilson,  1  Term  R.  659;  Davis 
V.  James,  5  Burrows,  2680;  Mead  v.  Railway  Co.,  18  Wkly.  Rep.  735;  Dunlop 
v.  Lambert,  6  Clark  &  F.  600. 

8  5  Burrows,  2680. 

<  8  Term  R.  330. 

6  Green  v.  Clarke,  12  .\.  Y.  343;  Griffith  v.  Ingledew,  6  Serg.  &  R.  429; 
Pennsylvania  Co.  v.  Holderman,  69  Ind.  18;  South  &  N.  A.  R.  Co.  v.  Wood, 
72  Ala.  451;  Pennsylvania  Co.  v.  Poor,  103  Ind.  553,  3  N.  E.  253.  The  right 
of  stoppage  in  transitu  has  been  held  insufficient  to  entitle  the  shipper  to 
sue.  Potter  v.  Lansing,  1  Johns.  215;  Krulder  v.  EUison,  47  N.  Y.  36;  Blum 
V.  The  Caddo,  1  Woods,  64,  Fed.  Cas.  No.  1,573. 


§§    123—124]  CARRIERS    OF    GOODS PARTIES.  545 

agent     In  other  words,  the  owner  of  the  goods  is  the  person  who,  by 


presumption  of  law,  makes  the  contract  with  the  carrier.  Bnt  if  it  be 
shown  that  another  person  has  made  the  contract,  whether  he  has 
any  special  property  in  the  goods  or  not,  he  may  maintain  the  ac- 
tion." ®  The  true  distinction  seems  to  be  that  where  the  action  is 
founded  on  the  contract  for  the  delivery,  and  the  contract  is  directly 
with  the  consignor,  the  action  may  be  in  his  name;  but  where  it  is 
in  tort  for  a  violation  of  the  right  of  property  it  may  be  brought  by 
the  owner.  "It  would  be  without  example  to  deny  a  party  to  whom 
an  express  promise  is  made,  whether  as  trustee  or  in  his  own  right,  a 
remedy  for  its  violation.  This  would  produce  the  singular  case  of  a 
party's  having  a  right  to  break  an  engagement,  without  responsibility 
to  him  with  whom  it  is  made,  merely  because  it  is  possible  some  other 
person  may  have  a  remedy  against  him;  or,  what  would  be  more 
strange,  it  would  make  the  very  act  which  consummates  the  bargain 
between  the  shipper  and  master — that  is,  the  delivery — destroy  the 
remedy  of  the  former  on  the  contract.  To  whom  the  goods  belong 
is  of  no  importance  if  it  be  once  conceded,  which  cannot  be  contro- 
verted, that  the  right  of  property  may  be  in  one,  while  another,  by 
express  agreement,  may  have  a  remedy  for  some  negligence  or  mis- 
conduct in  relation  to  it."  ^  To  authorize  the  consignor  to  maintain 
an  action  against  a  carrier  where  he  has  neither  a  general  nor  a  spe- 
cial property  in  the  goods  shipped,  it  is  not  necessary  that  the  car- 
rier's contract  with  him  should  be  an  express  one.  The  implied  con- 
tract arising  out  of  the  delivery  to  the  carrier  for  transportation  in 
accordance  with  the  consignor's  directions  is  sufficient.^  The  recov- 
ery, of  course,  is  for  the  benefit  of  the  real  owner,  and  will  bar  a  sub- 
sequent action  by  the  latter  for  the  same  wrong.^     The  rule  of  Dawes 

«  Hutch.  C5aiT,  §  723.    See  Blanchard  v.  Page,  8  Gray,  281. 

7  Potter  V.  Lansing,  1  Johns.  215. 

8  Finn  v.  Railroad  Corp.  112  Mass.  524,  528. 

9  Southern  Exp.  Co.  v.  Craft,  49  Miss.  480.  "The  shipper  is  a  party  in  Interest 
to  the  contract,  and  it  does  not  lie  with  the  carrier  who  made  the  contiuct  with 
hina  to  say  upon  a  breach  of  it  that  he  is  not  entitled  to  recover  the  dam- 
ages unless  it  be  shown  that  the  consignee  objects,  for  without  that  it  will 
be  presumed  that  the  action  was  commenced  and  is  prosecuted  with  the 
knowledge  and  consent  of  the  consignee,  and  for  his  benefit.  The  consignor 
or  shipper  is,  by  operation  of  the  rule,  regarded  as  a  trustee  of  an  express 

LAW  BAIL.M. — 35 


646  ACTIONS    AGAINST   CAERIEBS.  [Ch.  9 

V.  Peck,*'  that  no  one  can  maintain  an  action  for  loss  or  damage  of 
the  goods  unless  he  has  a  general  or  special  property  in  them,  is  still 
followed  in  a  number  of  states. 

Same — Consignee  Presumed  to  have  Contracted  with  Carrier. 

In  the  absence  of  an  express  contract  it  is  presumed  that  the  car- 
rier is  employed  by  the  person  at  whose  risk  the  goods  are  carried; 
that  is,  the  person  whose  goods  they  are,  and  who  would  suffer  if  they 
were  lost.  Prima  facie,  this  is  the  consignee,  and  the  consignor  is 
presumed  to  contract  for  the  transportation  as  his  agent^^  Both 
these  presumptions  may  be  rebutted.^^  Where  the  consignee  is  the 
owner,  and  the  consignor  contracts  on  his  behalf,  the  consignee  may 

trust,  like  a  factor  or  other  mercantile  agent,  who  contracts  in  his  own  name 
on  behalf  of  his  principal."    Hooper  v.  Railway  Co.,  27  Wis.  81. 

10  8  Term  R.  330. 

11  Merchant's  Despatch  Co.  v.  Smith,  76  lU.  542;  Thompson  v.  Fargo,  49 
N.  Y.  188;  Krulder  v.  Ellison,  47  N.  Y.  30;  Brower  v.  Peabody,  13  N.  Y. 
121;  Dows  V.  Greene,  24  N.  Y.  638;  Dows  v.  Perrin,  16  N.  Y.  325;  Sweet 
V.  Barney,  23  N.  Y.  335;  Frank  v.  Hoey,  128  Mass.  263;  Rowley  v.  Bigelow, 
12  Pick.  306;  Smith  v.  Lewis,  3  B.  Mou.  (Ky.)  229;  Arbuckle  v.  Thompson, 
37  Pa.  St.  170;  Decan  v.  Shipper,  35  Pa.  St  239;  Congar  v.  Railroad  Co., 
17  Wis.  477;  Dyer  v.  Railway  Co.,  51  Minn.  345,  53  N.  W.  714;  Benjamin 
V.  Levy,  39  Minn.  11,  38  N.  W.  702;  McCauley  v.  Davidson,  13  Minn.  162 
(Gil.  150);  Straus  v.  Wessel,  30  Ohio  St.  211,  214;  W.  &  A.  R.  Co.  v.  Kelly. 
1  Head  (Tenn.)  158;  East  Tennessee  &  G.  R.  Co.  v.  Nelson,  1  Cold.  (Tenn.) 
272;  E.  L.  &  R.  R.  Ry.  Co.  v.  Hall,  64  Tex.  615;  Strong  v,  Dodds,  47  Vt  348. 
356;  Grove  v.  Brien,  8  How.  429;  Lawrence  v.  Mintum,  17  How.  100;  Blum 
V.  The  Caddo,  1  Woods,  64,  Fed.  Cas.  No.  1,573;  Pennsylvania  Co.  v.  Holder- 
man,  69  Ind.  18;  Madison,  I.  &  P.  R.  Co.  v.  Whitesel,  11  Ind.  55;  Scammou 
V.  Wells,  Fargo  &  Co.,  84  Cal.  311,  24  Pac.  2S4;  Webb  v.  Winter,  1  Cal.  417; 
South  &.  N.  A.  R.  Co.  V.  Wood,  72  Ala.  451;  Dawes  v.  Peck,  8  Term  R.  330; 
Evans  v.  Marlett,  1  Ld.  Raym.  271;  Coleman  v.  Lambert,  5  Mees.  &  W.  502, 
505.  As  to  suit  by  consignee  named  in  bill  of  lading,  see  Lawrence  v.  Min- 
tum, 17  How.  100;  Butler  v.  Smith,  35  Miss.  457;  Griffith  v.  Ingledew,  6 
Serg.  &  R.  429;  Bonner  v.  Marsh,  10  Smedes  &  M.  376.  Suit  in  admiralty, 
see  McKinlay  v.  Morrish,  21  How.  343,  355;  Houseman  v.  The  North  Carolina, 
15  Pet.  40,  49. 

12  Sweet  V.  Bamey,  23  N.  Y.  335;  Price  v.  Powell,  3  N.  Y.  322;  Everett  v. 
Saltus,  15  Wend.  474;  Lawrence  v.  Minturn,  17  How.  100;  Congar  v.  Rail- 
road Co.  17  Wis.  477,  486;  Smith  v.  Lewis,  3  B.  Mon.  (Ky.)  229;  Southern 
Exp.  Co.  V.  Caperton,  44  Ala.  101;  South  &  N.  A.  R.  Co.  v.  Wood,  72  Ala. 
451- 


§§  123-124]  cARUiEiia  of  goods — parties.  547 

maintain  an  action  on  the  contract,  even  though  he  was  not  disclosed 
to  the  carrier  at  the  time  the  contract  was  made.  An  undisclosed 
principal  may  maintain  an  action  on  a  contract  made  by  his  agent.^' 
Whether  the  consignor  contracted  on  liis  own  behalf  or  as  agent  of 
the  consignee  depends  primarily,  of  course,  upon  the  intention  of  the 
parties,  and  this  will  often  be  determined  with  a  view  to  which  pari;y 
has  the  title  to  the  goods.  When  goods  have  been  purchased  under 
a  contract  of  sale  by  the  consignee  from  the  consignor,  the  latter,  on 
delivering  them  to  the  carrier,  acts  merely  as  the  agent  of  the  con- 
signee to  employ  the  carrier,  and  delivery  to  the  carrier  operates  as 
delivery  to  the  consignee,  to  whom  title  thereupon  passes,  and  at 
whose  risk  they  are  carried,  and  he  is  therefore  the  proper  person  to 
sue.^*  If  there  has  been  no  contract  of  sale,  and  the  property  in  the 
goods  remains  in  the  consignor,  he  will  be  the  proper  person  to  sue, 
for  he  is  the  person  at  whose  risk  they  are,  and  therefore  is  presumed 
to  have  employed  the  carrier.  Such  is  the  case  where  goods  are  sent 
on  approval, ^^  or  without  any  instructions,^®  or  where  the  sale  is  not 
binding  on  the  consignee  by  reason  of  the  statute  of  frauds  ^^  or  other 
cause.  But  where  goods  are  delivered  to  a  carrier  on  behalf  of  the 
consignee,  at  his  request,  or  by  his  direction,  either  express  or  im- 
plied, the  prima  facie  presumption  is  that  the  property  in  the  goods 
immediately  vests  in  him,  and  that  he  is  the  proper  party  to  sue  the 
carrier  either  on  the  contract  made  by  the  consignor  as  his  agent,  or 
in  tort  for  the  breach  of  duty  on  the  part  of  the  carrier.^* 

18  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  344,  3S0;  San- 
derson V.  Lamberton,  6  Bin.  (Pa.)  129;  Elkius  v.  Railroad  Co.,  19  N.  H.  337; 
Ames  V.  Railroad  Co.,  12  Minn.  412  (Gil.  295);  Taintor  v.  Prendergast,  3  Hill, 
72;  Ford  v.  Williams.  21  How.  287. 

14  Dawes  v.  Peck,  8  Term  R.  330;  Cork  Distilleries  Co.  v.  Great  Southern 
&  W.  Ry.  Co.,  L.  R.  7  H.  L.  2G9;   King  v.  Meredith.  2  Camp.  639. 

16  Swain  v.  Shepherd,  1  Moody  &  R.  223. 

16  Coats  V.  Chaplin,  3  Q.  B.  483;  Wilson  v.  Wilson,  26  Pa.  St.  393;  Hays 
V.  Stone,  7  Hill,  128;    Stone  v.  Hayes,  3  Denio,  575. 

17  Coats  V.  Chaplin,  3  Q.  B.  483;  Coombs  v.  Railway  Co.,  3  Hurl  &  N.  510, 
27  L.  J.  Exch.  401. 

18  Vale  V.  Bayle,  Cowp.  294;  Krulder  v.  Ellison,  47  N.  Y.  36;  Pe<^le  v. 
Haynes,  14  Wend.  547.  Even  though  no  particular  carrier  is  named.  Dutton 
V.  Solomonson,  3  Bos.  &  P.  582;    Cooke  v.  Ludlow,  2  Bos.  &  P.  N.  E.  119; 


548  ACTIONS    AGAINST    CARRIERS.  [Ch.   9 

Same — Presumption  Whei-e  Consignee  Has  no  Interest  in  Goods. 

Where  the  consignee  has  neither  a  general  nor  a  special  property  in 
the  goods  shipped,  and  where  he  had  neither  personally  nor  by  agents 
contracted  in  his  own  behalf  for  the  transportation,  he  cannot  main- 
tain an  action  for  loss  or  damage  to  such  goods. ^®  There  is  no  pre- 
sumption, in  such  a  case,  that  the  consignor  acted  as  his  agent  in  con- 
tracting for  the  transportation.  But  where  the  consignee  has  in 
fact  contracted  with  the  canier  for  the  carriage  of  goods,  although 
the  property  in  them  may  not  have  passed  to  him  by  reason  of  the 
statute  of  frauds,  he  may  sue  for  damages  to  them.^* 

Action  by  Owner. 

The  owner  of  goods  shipped  by  a  carrier  really  sustains  the  dam- 
age from  their  loss  or  injury,  and  there  is  no  doubt  that  he  may  main- 
tain an  action  against  the  carrier  therefor,  not  because  he  has  any 
contract  with  him  for  the  carriage,  but  because  the  carrier  has  the 
goods  lawfully  in  his  possession.  It  has  become  his  duty  to  carry 
them  safely,  and  deliver  them  to  the  consignee  subject  only  to  a  lien 
for  his  charges,  and  a  wrongful  refusal  or  failure  to  do  so  is  a  tort 
for  which  the  owner  may  maintain  an  action. ^^  It  has  been  seen 
that  the  prima  facie  presumption  is  that  the  consignor  acted  as  agent 
for  the  owner  in  contracting  for  the  transportation.  Where  such 
presumption  is  not  rebutted,  the  owner  will  have  an  option  to  sue 
either  upon  the  contract  or  in  tort  for  breach  of  the  common-law  duty 
of  the  carrier.^'  To  bring  a  person  within  this  rule,  it  is  not  neces- 
sary  that  he  should  be  the  absolute  owner  of  the  property.     One  hav- 

Amold  V.  Prout,  51  N.  H.  587,  589;  Garland  v.  Lane,  46  N.  H.  245,  248; 
Woolsey  v.  Bailey,  27  N.  H.  217;  Smith  v.  Smith,  Id-  244,  252;  The  Mary 
and  Susan,  1  Wheat.  25;  Dunlop  v.  Lambert,  6  Clark  &  F.  600;  Hutch.  Carr. 
§§  733,  734, 

19  Ogden  V.  Coddington,  2  E.  D.  Smith,  317;  Coombs  v.  Railway  Co.,  3  HurL 
&  N.  510;   Sargent  v.  Morris,  3  Bam.  &  Aid.  277. 

2  0  Mead  v.  RaUway  Co.,  18  Wkly.  Rep.  735. 

21  Blanchard  v.  Page,  8  Gray,  281,  289;  Griffith  v.  Ingledew,  6  Serg.  &  R. 
428,  438. 

22  A  shipper  who  is  both  consignor  and  consignee  Is  presumptively  entitled 
to  maintain  an  action  for  loss  or  injury  to  the  goods.  Swift  v.  Steamship 
Co.,  106  N.  Y.  206,  12  N.  K  583. 


§§    123-124]  CARRIERS    OF    GOODS PARTIES.  549 

Ing  a  special  proper±y.  snch  as  a  bailee,  may  sue."  Either  the  g;^en- 
eraJor  special  owner,  or  both  of  them,  may  sue  in  such  cases.  Butja 
recovery  by  either  will  bar  a  subsequent  action  by  the  other.** 

Actions  for  Delay  in  Delivery  and  Refusal  to  Receive  Goods. 

In  detemiining  the  proper  party  to  bring  an  action  against  a  car- 
rier for  wrongful  delay  the  same  considerations  are  applicable  as  in 
case  of  actions  for  loss  or  injury.  These  have  already  been  suf- 
ficiently discussed,  and  will  not  be  repeated.  Actions  for  refusal  to 
receive  goods  should  be  brought  by  the  one  offering  them  for  car- 


23  Dlinois  Cent.  R.  Co.  v.  Miller,  32  111.  App.  259;  lUinois  Cent.  &.  Co.  v. 
Schwartz,  13  III.  App.  490;  Thompson  v.  Fargo,  44  How.  Prac.  176;  Steam- 
boat Co.  V.  Atkins,  22  Pa.  St.  522;  White  v.  Baseom,  28  Vt.  2G8;  Denver.  S.  P. 
&  P.  R.  Co.  V.  Frame,  6  Colo.  382.  Mere  bon-ower  cannot  sue.  Lockhart  v. 
Railroad  Co.,  73  Ga.  472.  Factors:  Boston  &  M.  R.  Co.  v.  Warrior  Mower  Co., 
76  Me.  251;  Wolfe  v.  Railway  Co.,  97  Mo.  473,  11  S.  W.  49.  Bailees:  Murray 
V.  Warner,  55  N.  H.  546,  549;  Moi-an  v.  Packet  Co.,  35  Me.  55;  Elkins  v. 
Railroad  Co.,  19  N.  H.  337;  Great  Western  R.  Co.  v.  McComas.  33  lU.  185, 
187.  A  laundress  delivering  laundry  to  a  carrier  for  transportation  to  the 
owner  may  maintain  an  action  for  its  loss.  Freeman  v.  Birch,  1  Nevile  &  M. 
420,  3  Q.  B.  492,  43  E.  C.  L.  835.  Agents:  Southern  Exp.  Co.  v.  Caperton,  44 
Ala.  101. 

24  Green  v.  Clarke,  12  N.  Y.  343;  Illinois  Cent.  R.  Co.  v.  Miller,  32  m.  App. 
259;  Illinois  Cent  R.  Co.  v.  Schwartz,  13  111.  App.  490;  Murray  v.  Warner, 
55  N.  H.  546,  549;  Elkins  v.  Railroad  Co..  19  N.  H.  337;  Denver,  S.  P.  &  P. 
R,  Co.  V.  Frame,  6  Colo.  382;  Green  v.  Clarke,  12  N.  Y.  343;  Southern  Exp. 
C5o.  V.  Caperton,  44  Ala.  101;  The  Farmer  v.  McCraw,  26  Ala.  189.  Tbe  rule 
Is  that  either  the  bailor  or  the  baUee  may  sue,  and,  whichever  first  obtains 
damages,  it  is  a  fuU  satisfaction.  Murray  v.  Warner,  55  N.  H.  546,  549;  El- 
kins V.  Railroad  Co.,  19  N.  H.  337;  White  v.  Baseom,  28  Vt  268;  Nicolls  v. 
Bastard,  2  Cromp.,  M.  &  R.  659. 

2  5  Cobb  V.  Railroad  Co.,  38  Iowa,  601;  Lafaye  v.  Harris,  13  La,  Ann.  553; 
Pittsburgh,  C.  &  St  L.  Ry.  Co.  v.  Morton,  61  Ind.  539;  Pittsburgh,  O,  a  & 
St  L.  Ry.  Oa  v.  Racer,  5  Ind.  App.  209. 


650  ACTIONS    AGAINST    CARRIERS.  [Ch.  9 

125.  Actions  for  delay  or  loss  or  injury  must  be  brought 

against  the  carrier  undertaking  the  transportation, 
and  not  against  a  mere  servant  or  agent. 
EXCEPTION —  The  master  of  a  vessel  may  be  sued  tis 
■well  as  the  owner,  but  they  cannot  be  joined. 

126.  Actions  for  refusal  to  receive  goods  must  be  brought 

against  the  carrier  holding  himself  out  as  ready  to 
carry  for  all. 

Actions  for  Loss  or  Injury  or  Delay. 

On  familiar  principles,  the  action  for  loss  or  injury  or  delay  of  the 
goods  shipped  must  be  brought  against  the  carrier  undertaking  the 
transportation,  and  not  against  his  mere  servant  or  agent.-®  This  is 
because  the  duty  violated  is  the  duty  of  the  carrier,  and  not  the  duty 
of  the  servant.  Where,  however,  the  transportation  is  without  the 
scope  of  the  carrier's  business,  but  the  servant,  without  authority, 
nevertheless  undertakes  it,  he,  and  not  the  carrier,  is  liable;  ^'^  as  is 
also  the  case  where  the  property  is  delivered  to  a  servant  to  carry  for 
his  own  profit,  and  not  his  master's. ^^  In  both  cases  it  is  obvious 
that  no  duty  rests  on  the  master.  There  is  one  important  exception, 
however,  to  the  general  rule,  and  this  is  in  the  case  of  the  master  of 
a  vessel.  For  reasons  of  public  policy  gi'owing  out  of  the  confidence 
necessarily  reposed  in  the  master,  and  his  exceptional  opportunities 
to  safely  commit  frauds,^®  he  is  regarded  as  a  common  carrier,^"  and 
is  equally  liable  with  the  owner  of  the  vessel.*^  Either  he  or  the 
owner  may  be  sued  for  loss  or  injury.     But  they  cannot  be  joined.^- 

2  8  Williams  v.  Cranston,  2  Starkie,  82,  3  E.  C.  L.  326. 

2  7  Citizens'  Bank  v.  Nantucket  Steamboat  Co.,  2  Story,  17,  34,  Fed.  Cas.  No. 
2,730;   Shelden  v.  Robinson,  7  N.  H.  157;    Elkins  v.  Railroad  Co.,  23  N.  H.  275. 

2  8  Butler  V.  Basing,  2  Car.  «fe  P.  613,  12  E.  C.  L.  764.  See  WiUiams  v.  Crans- 
ton, 2  Starkie,  82,  3  E.  C.  L.  326,  remarks  per  Ellenborongh. 

28  Elliott  V.  Rossell,  10  Johns.  1;    Watkinson  v.  Laughton,  8  Johps.  164. 

3  0  McClures  v.  Hammond,  1  Bay  (S.  C.)  99;  Schieffelin  v.  Harvey,  6  Johns. 
170;  Watkinson  v.  Laughton,  8  Johns.  164;  Elliott  v.  Rossell,  10  Johns.  1; 
BeU  V.  Reed,  4  Bin.  (Pa.)  27. 

«i  Boson  V.  Sandford,  1  Show.  28;  Mors  v.  Sluce,  1  Mod.  85;  Patton  v.  Ma- 
grath,  1  Rice  (S.  C.)  162;  Priestly  v.  Femie,  11  Jur.  (N.  S.)  813,  34  L.  J.  Exch. 
172.     Contra,  Walston  v.  Myers,  5  Jones  (N.  C.)  174. 

««  Patton  V,  Magrath,  1  Rice  (S.  a)  162;    Rich  v.  Coe,  Oowp.  636. 


§§    127-128]  CARRIERS    OF    GOODS FORM    OP    ACTION.  561 

Their  liability  rests  on  different  grounds.     A  recovery  against  one 
bars  an  action  against  the  other." 

Actions  for  Refusal  to  Receive. 

Actions  for  refusal  to  receive  should  be  brought  against  the  car- 
rier holding  himself  out  as  ready  to  cai'ry  for  all,  because  it  is  hia 
duty  that  is  violated- 

Connecting  Carriers. 

Where  goods  are  shipped  over  connecting  lines,  the  rules  as  to 
parties  correspond  to  the  rules  of  substantive  liability  already  dis- 
cussed. 

SAME— FOBM  OP  ACTION. 

127.  A  conunon   carrier   may  be  sued   either  ex  contractu 

or   ex  delicto   for   breach  of  his  duty  to   transport 
and  deliver  safely,  and  "within  a  reasonable  time. 

128.  An  action  for  refusal  to  receive  goods  must  be  brought 

ex  delicto,  in  the  absence  of  a  special  contract  be- 
tw^een  the  parties. 

Originally,  a  common  carrier's  liabiIitv^_wag_thought  to  rest  ex- 
clusively upon  his  common-law  duty  to  receive  and  to  transport  ajuL 
deliver  safely.  A  breach  of  this  duty  constituted  a  tort,  and  an 
action  on  the  case  was  the  proper  remedy.^ °  The  right  of  a  ship- 
per to  sue  a  common  carrier  upon  his  contract  to  carry  and  deliver 
was  first  recognized  in  the  case  of  Dale  v.  Hall,^^  since  which  time 
a  person  contracting  with  a  common  carrier  has  had  a  choice  of 
remedies.  He  may  sue  either  in  assumpsit  for  breach  of  the  con- 
tract, or  in  tort  (case)  for  the  breach  of  the  common-law  duty.^'^ 

33  Priestly  v.  Fernie,  11  Jur.  (N.  S.)  813,  34  Law  J.  Exeh.  172. 

36  Hutch.  Carr.  §  738. 

««  1  Wils.  281.  And  see  Ansell  v.  Waterhouse,  2  Chit.  1,  18  E.  C.  L.  4fi9, 
6  Maule  &  S.  385. 

8T  Orange  Banli  v.  Brown,  3  Wend.  158;  Lamb  v.  Transportation  Co.,  2  Daly, 
454;  Catlin  v.  Adirondack  Co.,  11  Abb.  N.  C.  377,  Atlantic  Mut.  Ins.  Co.  v. 
McLoon,  48  Barb.  27;  Smith  v.  Seward,  3  Pa.  St.  342;  Coles  v.  Railroad  Co., 
41  111.  App.  607;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  McCasIand,  11  111.  App.  491; 
St  Louis,  I.  M.  &  S.  Ry.  v.  Heath,  41  Ark.  476;  Baltimore  &  O.  R.  Co.  v. 
Pumphrey,  59  Md,  390;   Mississippi  Cent  R.  Co.  v.  Fort  44  Miss.  423;    School 


552  ACTIONS    AGAINST   CARRIERS.  [Ch.   9 

Each  form  of  action  has  its  own  peculiar  advantages.  For  exam- 
ple, where  it  is  uncertain  who  should  be  made  defendants,  the 
wisest  course  is  to  bring  the  action  in  tort,  because  in  tort  it  is  im- 
material whether  there  are  too  many  or  too  few  defendants, — the 
plaintiff  recovers  against  those  who  are  proved  guilty;  ^^  whereas, 
if  the  action  is  in  assumpsit  on  the  contract,  a  misjoinder  or  non- 
joinder of  parties  is  fatal  to  a  recovery.^®  This  distinction  was 
well  brought  out  in  an  action  against  a  public  carrier  of  passen- 
gers, and  the  rule  is  the  same  with  respect  to  common  carriers.  The 
action  was  brought  in  case  against  ten  defendants,  and  the  verdict 
was  rendered  against  eight  of  the  defendants  and  in  favor  of  the 
other  two.  The  question  was  raised  whether  a  judgment  entered  on 
such  a  verdict  could  stand.  Dallas,  C.  J.,  said:  "This  action  is  on  the 
case  against  a  common  carrier,  upon  whom  a  duty  is  imposed  by 
the  custom  of  the  realm,  or,  in  other  words,  by  the  common  law,  to 
carry  and  convey  their  goods  or  passengers  safely  and  securely,  so 
that  by  their  negligence  or  default  no  injury  or  damage  happen, 
A  breach  of  this  duty  is  a  breach  of  the  law,  and  for  this  breach  an 
action  lies,  founded  on  the  common  law,  which  action  wants  not 
the  aid  of  a  contract  to  support  it.  *  *  *  The  action  of  as- 
sumpsit, as  applied  to  cases  of  this  kind,  is  of  modern  use.      If  the 

Dist  v.  Boston,  H.  &  E.  R.  Ck).,  102  Mass.  552,  555;  The  Queen  of  the  Pacific, 
«1  Fed.  213;  Whittenton  Manuf'g  Co.  v  Memphis  &  O.  R.  P.  Co.,  21  Fed. 
896;  The  Grapeshot,  22  Fed.  123;  The  Samuel  J.  Christian,  16  Fed.  796;  An- 
sell  V.  Waterhouse,  6  Maule  &  S.  385,  2  Chit.  1,  18  E.  C.  L.  469.  A  special 
contract  with  the  carrier  will  not  preclude  the  shipper  from  suing  in  case 
without  referring  to  the  contract.  Clark  v.  Richards,  1  Conn.  53,  59;  Arnold 
V.  Railroad  Co.,  83  111.  273;  Clark  v.  Railway  Co.,  64  Mo.  440;  Oxiey  v.  Rail- 
way Co.,  65  Mo.  629;  Coles  v.  Railroad  Co.,  41  IlL  App.  607;  Wabash,  St  L. 
&  P.  Ry.  Co.  V.  Pratt,  15  111.  App.  177.  But  see  Kimball  v.  Railroad  Co.,  26 
VL  247. 

38  Orange  Bank  v.  Brown,  3  Wend.  158;  Cabell  v.  Vaughan,  1  Saund.  291a, 
ii91e;  Ansell  v.  Waterhouse,  supra;  Jones  v.  Pitcher,  3  Stew.  &  P..  135;  Hols- 
apple  V.  RaUroad  Co.,  86  N.  Y.  275;  Mitchell  v.  Tarbutt,  5  Term  R.  649;  Smith 
V.  Seward,  3  Pa.  SL  342,  345;  Patton  v.  Magrath,  1  Rice  (S.  a)  162;  Pozzi  v. 
Shipton,  8  Adol.  &  E.  963,  35  E.  G.  L,  931.  Connecting  carriers,  see  Baker  v. 
Railroad  Co.,  42  111.  73. 

3»  Smith  V.  Seward,  3  Pa.  St.  342;  Mershon  v,  Hobensack,  22  N.  J.  Law, 
372;  Patton  v.  Magrath,  1  Rice  (S.  C.)  162;  Pozzi  v.  Shipton,  8  AdoL  &  E. 
9G3, 


§§    1^7-128]  CARRIKRS    OF    GOODS FORM    OF    ACTION.  553 

action  be  not  founded  on  a  contract,  but  on  a  breach  of  duty  de- 
pending on  the  common  hiw,  on  a  tort  or  misfeasance,  it  cannot  be 
contended  that  the  judgment  is  erroneous;  for  from  the  nature  of 
the  case  and  the  form  of  the  action  it  is  several,  and  not  joint,  and 
may  be  maintained  against  some,  only,  of  those  against  whom  it  is 
brought.".*"  So,  also,  in  actions  on  the  case  it  is  not  necessary  to 
plead  the  circumstances  with  the  same  pai-ticularity  and  certainty 
as  is  required  in  assumpsit,  and  therefore  the  danger  of  a  variance 
between  the  pleadings  and  proof  is  not  so  great.* ^  Again,  where 
the  action  is  in  case,  a  count  in  trover  may  be  joined,  which  is  some- 
times an  advantage;  *^  whereas  trover,  being  an  action  ex  delicto, 
cannot  be  joined  with  a  count  in  assumpsit.*^  The  action  of  as- 
sumpsit, on  the  other  hand,  has  the  advantage  of  not  abating  upon 
the  death  of  either  party,  but  it  survives  in  favor  of  or  against  their 
respective  representatives.**      So,  also,  the  common  counts  may  be 

*o  Bretherton  v.  Wood,  3  Bred.  &  B   54 

*i  Weed  V.  Railroad  Co.,  19  Wend.  534. 

*2  Dickon  v  Clifton,  2  Wils.  319;  Dwight  v.  Brewster,  1  Pick.  (Mass.)  50; 
Wyld  V.  Pickford,  8  Mees.  &  W.  443;  Govett  v.  Radnidge,  3  East,  62,  69. 
Trover  Is  not  the  proper  remedy  for  loss  of  goods.  Ross  v.  Johnson,  5  Bur- 
rows, 2825;  Kirkman  v.  Hargreaves,  1  Selw.  N.  P.  (10th  Ed.)  411;  Anon.,  2 
Salk.  665;  Bowlin  v.  Nye,  10  Cush.  (Mass.)  416.  Trover  lies  for  wrongful  de- 
livery to  third  person.  Viner  v.  Steamship  Co.,  50  N.  Y.  23;  Bush  v. 
Romer,  2  Thomp.  &  C.  (N.  Y.)  597;  Hawkins  v  Hoffman,  6  Hill,  586;  Llbby 
V.  Ingalls,  124  Mass.  503;  Humphreys  v.  Reed.  6  Whart.  434;  Shenk  v.  Steam 
Propeller  Co.,  60  Pa.  St.  109;  BuUard  v.  Young.  3  Stew.  46;  Stephenson  v. 
Hart,  4  Bing.  476;  Illinois  Cent.  R.  Co  v.  Park,  54  111.  294;  Indianapolis  & 
St  L.  R.  Co.  V.  Herndon,  81  111.  143;  St  Louis  &  T.  H.  R.  Co.  v.  Rose,  20 
111.  App.  670.  Also  for  refusal  to  delivei.  Noithem  Transportation  Co.  v. 
Selllck,  52  111.  249;  Adams  v.  Clark,  9  Cush  215;  Richardson  v.  Rich,  104 
Mass.  156,  159;  Packard  v.  Getman,  6  Cow.  (N.  Y.)  757;  Long  v.  Railroad 
Co.,  51  Ala.  512;  Hunt  v.  Haskell,  24  Me.  339;  LouisviUe  &  N.  R.  Co.  v.  Law- 
son,  88  Ky.  496,  11  S.  W.  511;  Erie  Dispatch  v.  Johnson,  87  Tenn.  490,  11  S. 
W.  441;  Lewis  v.  Railroad  Co.,  20  Minn.  260  (Gil.  234);  Marsh  v.  Railway 
Co.,  9  Fed.  873.  See,  also,  Ostrander  v.  Brown,  15  Johns.  39.  Trover  lies 
where  carrier  has  sold  goods  for  freight.  SuUivan  v.  Park,  33  Me.  488; 
Briggs  V.  Railroad  Co.,  6  Allen,  246. 

*8  Coryton  v.  Lithebye,  2  Saund.  115,  and  note.  See,  also,  Hoagland  y 
Railroad  Co.,  39  Mo.  451;  Colwell  v.  Railroad  Co.,  9  How.  Prac.  811. 

**  Hambly  v.  Trott  Cowp.  371,  875;   Hutch.  Can.  §  743. 


554  ACTIONS    AGAINST    CARRIERS.  [Ch.   9 

joined,  which  is  a  distinct  advantage.*"  Of  course,  where  the  car- 
rier's liability  is  dependent  upon  a  special  contract,  as  where  the 
contract  imposes  upon  the  carrier  some  duty  or  obligation  not  al- 
ready imposed  by  the  common  law,  the  action  should  be  upon  the 
contract,  and  not  in  case  upon  the  tort.  The  form  of  action  may 
also  affect  the  measure  of  damages.  By  the  modern  codes  abol- 
ishing the  different  forms  of  action,  and  establishing  one  form,  called 
a  "civil  action,"  these  distinctions  have  been  very  generally  rendered 
unimportant.  They  are  still  in  force  to  a  greater  or  less  extent, 
however,  in  a  few  of  the  states. 

Action  for  Refusal  to  Receive  Goods. 

The  duty  to  receive  all  goods  offered  for  transportation  is  im- 
posed by  the  common  law,  and  its  breach  is  a  tort.  Obviously,  a 
refusal  to  receive  goods  offered  does  not  ordinarily  involve  a  breach 
of  conti'act,  and  the  action  must  therefore  be  in  case.*'  But  there- 
may  be  a  special  contract  between  the  parties,  of  which  a  refusal  to 
receive  goods  would  constitute  a  breach.  In  such  a  case  an  action 
may,  of  course,  be  brought  on  the  contract.*^ 

129.  SAME— THE  PLEADINGS. 

It  has  been  seen  that  actions  against  common  carriers  may  be  either 
ex  contractu  or  ex  delicto,  according  as  the  wrong  relied  on  is  a 
breach  of  a  contract  duty  or  a  duty  imposed  by  law.  The  pleadings 
must,  of  course,  be  ajjpropriate  to  the  form  of  action  adopted.  In 
code  states  the  matter  is  no  longer  one  of  importance.  It  is  beyond 
the  scope  of  this  book  to  discuss  pleading  either  under  the  codes  or  at 
common  law.  There  are  no  principles  peculiar  to  actions  against  car- 
riers. It  is  sufficient  to  say  that  the  plaintiff  must  allege  all  facts 
necessary  to  show  the  existence  of  a  duty  owed  to  him  by  defendant, 
its  violation,  and  resulting  damage. 

4B  Ang.  Carr.  §  435;   Hutch.  Carr.  §  743;    1  Chit.  PI.  114,  418. 

*6  Pickford  V.  Railway  Co.,  8  Mees.  &  W.  372;  Galena  &  C.  U.  R.  Co.  v. 
Rae,  18  111.  488;   Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Morton,  61  Ind.  539. 

*^  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Hays,  49  Ind.  207;  Texas  P.  Ry.  Co. 
V.  Nicholson,  61  Tex.  491;  Northwestern  Fuel  Co.  v.  Burlington,  C.  R.  &  N.  R. 
Co.,  20  Fed.  712. 


§  130j  CARRIERS  OF  GOODS EVIDENCE.  666 


130.  SAME— THE  EVIDENCE. 

No  general  rule  can  be  stated  in  regard  to  the  evidence  admissible 
and  necessary  in  actions  against  carriers.  All  facts  necessary  to  es- 
tablisli  the  carrier's  liability  must  be  shown.  In  actions  for  loss  or 
injury,  plaintiff  must  sho^<|  deljvery  of  the  goods  to  the  carrieil^ 
undertaking  on  the  part  of  the  carrier  to  transport  tl^em  safely,  and 
/^a  failure  to  do  so,_  These  three  things  must  be  shown  whether  the 
action  be  ex  contractu  or  ex  delicto.*^  No  liability  for  the  goods  at- 
taches to  the  carrier  until  they  have  been  delivered  to  him  and  he  has 
undertaken  to  transport  them.*^  What  constitutes  a  sufficient  de- 
livery has  already  been  shown. ^^  The  undertaking  or  contract  to 
carry  may  be  either  express  or  implied."  It  will  be  implied  from 
proof  of  a  delivery  to  the  carrier  with  instructions  as  to  the  trans- 
portation, and  acceptance  by  him.  This  implied  contract  arises 
only  in  case  of  a  delivery  to  a  common  carrier.'*^  In  the  case  of  pri- 
vate carriers  an  express  contract  must  be  shown."*  The  plaintiff 
must  show  whose  default  caused  the  loss.  In  the  case  of  successive 
carriers  .plaintiff  must  single  out  the  one  responsible  for  the  loss,  un- 
less, of  course,  the  first  carrier  undertook  to  carry  the  goods  through 
to  their  destination,  or  the  successive  carriers  are  partners." ° 

The  subject  of  burden  of  proof  has  already  been  discussed  in  con- 
nection with  the  specific  treatment  of  the  various  questions  that  arise. 

*«  Hutch.  Carr.  §  759. 

4  9  See  ante,  p.  314. 

BO  See  ante,  p.  316. 

61  Hutch.  Carr.  §  762.  From  the  necessity  of  proving  an  undertaking,  either 
express  or  implied,  a  contract,  though  in  form  ex  delicto,  is  sometimes  called 
an  action  ex  delicto  quasi  ex  contractu.  Orange  Bank  v.  Brown.  3  Wend.  I.jS. 
And  see  Allen  v.  Sewall,  2  Wcud.  327;  Boson  v.  Sandford,  2  Show.  478. 

6  3  Marshall  v.  Railway  Co.,  11  C.  B.  655;  Pozzi  v.  Shipton,  8  Adol.  &  E. 
963;    Orange  Bank  v.  Brown,  3  Wend.  158. 

64  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165;  2  Greenl.  Ev. 
§210. 

6  6  Midland  Ry.  Co.  v.  Bromley.  17  C.  B.  372;  Gilbart  v.  Dale,  5  Adol.  &  B. 
543;  Anchor  Line  v.  Dater,  68  111.  369.  See,  also,  Muschamp's  Case,  8  Mees. 
&  W.  421;    Chicago  &  N.  W.  R.  Co.  v.  Northern  Line  Packet  Co.,  70  IlL  217. 


656  ACTIONS    AGAINST    CARRIERS.  [Ch.  9 


SAME— THE  DAMAGES. 

181.  The  measure  of  damages  for  refusal  to  receive  and 
transport  goods  is  the  difference  between  the  value 
of  the  goods  at  the  time  and  place  of  refusal  and 
•what  -would  have  been  thei^  value  at  the  time  and 
place  -where  they  should  have  been  delivered. 

132.  If  other  reasonable  mode  of  conveyance  can  be  pro- 
cured, the  measure  of  damages  is  the  increased  cost 
of  transportation. 

The  object  of  all  transportation  is  to  have  the  use  of  or  an  oppor- 
tunity to  sell  the  goods  at  the  place  of  destination.  The  damages  for 
a  wrongful  refusal  to  transport  goods  is,  therefore,  the  value  to  the 
shipper  of  having  them  at  the  point  of  destination.  This  will  or- 
dinarily be  the  difference  between  the  value  of  the  goods  at  the  time 
and  place  of  refusal  and  their  value  at  the  place  of  destination  at  the 
time  they  should  have  been  delivered  there."'  Thus,  where  a  carrier 
agreed  to  transport  lumber,  railroad  ties,  etc.,  from  Canada  "to  Bos- 
ton, and  failed  to  do  so,  the  measure  of  damages  was  held  to  be  the 
difference  between  the  market  price  in  Boston  and  Canada  at  the  time 
when  the  defendant  should  have  performed,  less  the  cost  of  trans- 
]i9rtntin^°T  But  damages  cannot  be  recovered  for  consequences  that 
might  have  been  avoided  by  the  exercise  of  reasonable  diligence  on 
the  part  of  the  plaintiff.  Therefore,  if  other  means  of  transportation 
may  be  had,  and  the  circumstances  are  such  that  a  reasonably  pru- 
dent man  would  forward  the  goods  by  those  means,  the  measure  of 
damages  is  the  increased  expense  of  transportation  by  such  means;  "• 

66  Pennsylvania  R.  Co.  v.  Titusville  &  P.  P.  R.  CJo..  71  Pa.  St.  350:  Galena  & 
O.  U.  R.  Co.  v.  Rae,  18  111.  488;  Harvey  v.  KaUroad  Co.,  124  Mass.  421; 
Bridgman  v.  The  EmUy,  18  Iowa,  509;  Wards  O.  &  P.  L.  Co.  v.  Elkins,  34 
Mich.  439;   O'Conner  v.  Forster,  10  Watts,  418. 

07  Harvey  v.  Railroad  Co.,  124  Mass.  421. 

58  O'Conner  v.  Forster,  10  Watts,  418;  Ogden  v.  Marshall,  8  N.  Y.  340; 
Grund  v.  Pendergast,  58  Barb.  21G;  Higginson  T.  Weld,  14  Gray,  165;  Croucii 
T.  Railway  Co.,  11  Exch.  742. 


§    184]  CARRIERS    OF    GOODS DAMAGES.  557 

and,  if  such  means  is  no  more  expensive,  and  is  equally  convenient, 
only  nominal  damages  can  be  recovered."* 

133.  The  measure  of  damages  for  total  loss  or  nondelivery 

is  the  value  of  the  goods  at  the  time  and  place  they 
should  have  been  delivered. 

Obviously,  the  natural  and  probable  consequences  of  a  failure  to  de- 
liver the  goods  at  their  destination  is  a  loss  to  the  owner,  amounting 
to  the  value  of  the  goods  at  that  point,  and  such  value  is  therefore  the 
measure  of  damages.®"  Ordinarily,  value  means  market  value,  but 
where  goods  have  no  market  value  their  value  to  the  owner  may  be 
recovered.'^ 

134.  The  measure  of  damages  for  injury  to  goods  in  trans- 

it is  the  difference  bet^v^een  the  value  of  the  goods 
at  the  time  and  place  of  delivery  in  their  damaged 
condition  and  what  their  value  would  have  been 
had  they  been  delivered  in  good  order. 

Where  there  is  a  total  failure  to  deliver  the  goods,  the  owner's  loss 
is  their  real  value.  It  is  obvious  that  if  the  goods  are  delivered  to  the 
consignee,  but  in  a  damaged  condition,  the  actual  loss  is  diminished 
by  an  amount  equal  to  the  value  of  the  damaged  goods  received,  and 
the  difference  between  this  value  and  what  the  value  would  have 
been  had  the  goods  been  delivered  uninjured  is  the  measure  of  dam- 
ages.®^ Thus,  butterine  shipped  to  New  Orleans  was  damaged  in 
transit,  through  the  carrier's  negligence.     On  its  arrival  its  market 

68  3  Suth.  Dam.  §  899. 

80  Rodocanachi  v.  Milbum,  18  Q.  B.  Div.  67.  Cf.  Magnln  v,  Diusmore,  56 
N.  Y.  108.  62  N.  Y.  35,  and  70  N.  Y.  410.  See,  also,  Faulkner  v.  Hart,  82 
N.  Y.  418;  Spring  v.  Haskell,  4  Allen,  112;  Sangamon  &  M.  R.  Ck).  v.  Henry, 
14  111.  156. 

61  Cf.  Rodocanachi  v.  Milburn,  18  Q.  B.  Div.  07. 

8  2  Notara  v.  Henderson,  L.  R.  7  Q,  B.  225;  Chicago,  B.  &  Q.  R.  Co.  v.  Hale, 
83  111.  360;  Brown  v.  Steamship  Co.,  147  Mass.  58,  16  N.  E.  717;  Louisville 
&  N.  R.  Co.  V.  Mason,  11  Lea,  116;  Magdeburg  General  Ins.  Co.  v.  Paulson, 
29  Fed.  530;  The  Mangalore,  23  Fed.  ■ii.iS.  See  MoiTison  v.  Steamsliip  Co., 
36  Fed.  569,  571;  The  Compta,  5  Sawy.  137,  Fed.  Gas.  No.  3,070. 


658  ACTIONS    AGAINST    CARRIERS.  [Ch.   9 

value  in  its  damaged  condition  was  7|  cents  per  pound,  at  which  price 
it  was  sold.  Had  it  been  in  good  order,  its  market  value  would  have 
been  15  or  16  cents  a  pound.  It  was  held  that  plaintiil  was  entitled 
to  the  difference  with  interest^,' 

135.  The  measure  of  damages  for  delay  is  the  difference 

between  the  value  of  the  goods  at  the  time  and 
place  fixed  for  delivery  and  their  value  at  the  time 
and  place  of  actual  delivery. 

136.  Where  the  value  of  the  goods  is  not  diminished  by 

the  delay,  the  measure  of  damages  is  the  value  of 
their  use  during  the  period  of  delay. 

The  first  rule  is  well  illustrated  by  a  leading  English  case.'*  A 
cap  manufacturer  delivered  to  a  carrier  cloth  bought  to  make  up 
into  caps  to  be  carried  to  M.  Owing  to  an  unreasonable  delay  in 
delivery,  the  cloth  was  received  too  late  for  use  that  season.  The 
carrier  knew  nothing  with  reference  to  plaintiff's  business  or  in- 
tentions. It  was  held  that  the  measure  of  damages  for  the  delay 
was  not  the  profits  plaintiff  might  have  made,  but  the  diminution 
in  value  of  the  goods  owing  to  the  time  for  finding  customers  having 
passed." 

8  8  Western  Manufg  Co.  v.  The  Guiding  Star.  37  Fed.  641. 

6*  Wilson  V.  Railway  Co.,  9  C.  B.  (N.  S.)  G32. 

ao  See,  also,  Cutting  v.  Railway  Co.,  13  Allen,  381;  Weston  v.  Railway  Co., 
54  Me.  376;  Sherman  v.  Railroad  Co.,  64  N.  Y.  254;  Scott  v.  Steamship  Co., 
106  Mass.  468;  Collard  v.  Railway  Co.,  7  Hurl.  &  N.  79;  Ayres  v.  Railway 
Co.,  75  Wis.  215,  43  N.  W.  1122;  Ingledew  v.  Railroad  Co.,  7  Gray,  86.  Money 
spent  looking  for  goods  may  be  recovered.  Hales  v.  Railway  Co.,  4  Best  & 
S.  66.  Cf.  Woodger  v.  RaUway  Co.,  L.  R.  2  C.  B.  318.  Where  goods  have 
been  resold  and  the  carrier  notified  of  the  price,  such  price  is  to  be  taken  as 
their  true  value,  Deming  v.  Railroad  Co.,  48  N.  H.  455,  470;  but  where  the 
carrier  is  not  notified  of  such  price,  the  market  price  is  considered  their  true 
value.  Home  v.  Midland  Ry.  Co.,  L.  R.  8  C.  P.  131;  Cf.  Illinois  Cent.  R.  Co. 
V.  Cobb,  64  111.  128,  where  shipper  was  allowed  to  recover  on  basis  of  con- 
tract price.  Where  goods  have  been  sold  "to  arrive,"  and  the  market  value 
at  the  time  when  they  should  have  arrived  was  greater  than  the  contract 
price,  recovery  has  been  allowed  on  the  basia  of  market  value.  Bodocanacbi 
v.  Mllburn,  L.  R.  18  Q.  B.  Div.  67. 


§    J  37]  CARRIERS    OF    GOODS DAMAGES.  559 

The  second  rule  is  illustrated  by  an  action  for  delay  in  forward- 
ing money.  The  measure  of  damages  was  held  to  be  interest  on 
the  money  during  the  period  of  delay.®'  So  in  an  action  for  delay 
in  delivering  machinery,  the  measure  of  damages  was  said  to  be 
the  value  of  the  use  of  the  machinery,  or  the  sum  for  which  plain- 
tiff might  have  hired  like  machinery.'^ 

137.  Consequential  damages  arising  from  a  carrier's  de- 
fault may  be  recovered  provided  they  are  natural 
and  probable  consequences  of  the  breach  of  duty. 

In  the  case  of  all  of  the  rules  heretofore  stated  with  reference  to 
the  measure  of  damages,  the  damages  allowed  have  been  for  losses 
directly  caused  by  the  carrier's  breach  of  duty.  But  consequential 
or  indirect  damages  arising  from  such  breaches  of  duty  may  also 
be  recovered,  provided  they  are  natural  and  probable  consequences. 
The  following  rules  may  be  stated:  Damages  beyond  the  differ- 
ence in  market  values  will  not  be  allowed  unless  the  consequences 
of  a  default  are  communicated  to  or  known  by  the  company  at  the 
time  arid  place  of  delivery  to  them.  Only  such  losses  can  be  re- 
covered as  were  reasonably  contemplated  by  both  parties  at  the 
time  the  contract  for  carriage  was  made  as  likely  to  arise  from  a 
breach,  and  not  losses  arising  out  of  circumstances  then  wholly  un- 
known to  the  carrier.  Damages  will  be  given  only  for  the  reason- 
able and  proximate,  and  not  for  the  remote,  consequences  of  the 
breach  of  duty.*"* 

9  8  U.  S.  Exp.  Co.  V.  Haines,  67  lU.  137. 
«7  Priestly  v.  Railroad  Co.,  26  111.  206. 

•  8  Vlcksburg  &  M.  R.  Co.  v.  Ragsdale,  48  Miss.  468;  Hadley  r.  Baiendale, 
9  Ezch.  341. 


560  ACTIONS    AGAINST   CARRIERS.  [Ch.  9 


ACTIONS  AGAINST  CARKIERS  OF  PASSENGERS. 

138.  Actions  against  carriers  of  passengers  will  be  consid- 
ered -with  reference  to  — 

(a)  The  parties  (p.  560). 

(b)  The  form  of  action  (p.  561). 

(c)  The  pleadings  (p.  562). 

(d)  The  evidence  (p.  562). 

(e)  The  measure  of  damages  (p.  562). 

27uj  PaHiea. 

Ordinarily,  a  passenger  carrier's  duty  is  confined  to  the  passen- 
ger, and  he  alone  can  sue  for  its  breach.  At  common  law,  the  pas- 
senger himself  was  the  only  one  who  could  sue  for  a  personal  in- 
jury, and  in  case  of  his  death  before  recovery  the  right  of  action 
died  with  him,  and  did  not  survive  to  his  personal  representatives. 
Under  the  statute  of  laborers  (2.3  Edw.  m.  1349),  however,  grew 
up  what  are  known  as  the  "per  quod  actions,"  because  of  the  pecul- 
iar wording  of  the  pleadings.  The  action  lay  under  the  statute  by 
the  employer  against  a  third  person  who  interfered  with  the  rela- 
tionship of  his  servant,  "per  quod  servitium  amisit."  ^^  This  ac- 
tion was  easily  adapted  so  as  to  be  used  by  a  parent  for  an  injury 
to  his  child,  or  by  a  husband  for  injury  to  his  wife.  In  theory  the 
damages  given  in  this  class  of  cases  are  limited  to  compensation  for 
the  services  lost,  the  right  of  action  for  the  injury  to  the  person  be- 
ing in  the  injured  party,  and  ceasing  to  exist  upon  his  death.^" 
Where  the  injury  resulted  in  instant  death,  no  action  could  be 
maintained,  for  the  right  to  services  ceases  at  the  instant  of  death,  so 
that  the  parent,  husband,  or  master  is  deprived  of  no  service  to 
which  he  can  be  said  to  have  a  right."  This  defect  of  the  common 
law  was  remedied  in  England  by  Lord  Campbell's  act,''^  which 
enacted  that,  "wherever  the  death  of  a  person  shall  be  caused  by 

•9  Jag.  Torts,  p.  447. 

TO  Hall  V.  Hollander,  4  Baro.  &  O.  660. 

Ti  Wood,  Mast.  &  S.  §  223;  Grosso  v.  Delaware,  L.  &  W.  R,  Co.,  50  N.  J. 
Law,  317,  13  Atl.  233;  Connecticut  Mut.  Ins.  Co.  ?.  New  York  &  N.  H.  E.  Co., 
25  Conn.  2G5;    Hyatt  v.  Adams,  16  Mich.  180. 

"9  &  10  Vict  c.  93. 


§    138]  CARRIERS   OF   PASSENGERS.  561 

wrongful  act,  neglect,  or  default,  and  the  act,  neglect,  or  default 
is  such  as  would  (if  death  had  not  ensued)  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damages  in  respect  there- 
of, then  and  in  every  such  case  the  person  who  would  have  been 
liable  if  death  had  not  ensued  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured,  and  although 
the  death  shall  have  been  caused  under  such  circumstances  as 
amount  in  law  to  a  felony";  that  "every  such  action  shall  be  for 
the  benefit  of  the  wife,  husband,  parent,  and  child  of  the  person 
whose  death  shall  have  been  so  caused,  and  shall  be  brought  by  and  in 
the  name  of  the  executor  or  administrator  of  the  person  deceased ;  that 
in  every  such  action  the  jury  may  give  such  damages  as  they  may 
think  proportioned  to  the  injury  resulting  from  such  death  to  the 
parties  respectively  for  whose  benefit  such  action  shall  be  brought; 
and  that  the  amount  so  recovered,  and  deducting  the  costs  not  re- 
covered from  the  defendant,  shall  be  divided  amongst  the  before- 
mentioned  parties  in  such  shares  as  the  jury  by  their  verdict  shall 
find  and  direct."  Similar  acts  have  been  enacted  in  all  the  states 
of  this  country.  It  is  beyond  the  scope  of  this  book  to  discuss 
these  statutes.  Though  they  all  have  many  features  in  common, 
these  details  are  infinitely  various.  The  proper  party  to  bring  the 
action  must  be  determined  from  the  particular  statute  under  which 
a  recovery  is  sought. 

Fo7~m  of  Action. 

A  passenger  injured  by  a  breach  of  the  carrier's  obligations  to  him 
has  the  same  choice  of  remedies  as  exists  in  the  case  of  carrier  of 
goods,  and  the  action  will  be  brought  either  in  assumpsit  on  the  ex- 
press or  implied  contract  or  in  case  for  the  tort.^^  The  different 
forms  of  actions  have  the  same  advantages  and  disadvantages  when 
the  action  is  for  injury  to  a  passenger  as  when  it  is  for  an  injury  to 
goods.''*  Where  it  is  doubtful  whether  the  action  in  any  particular 
case  is  to  be  regarded  as  one  in  assumpsit  or  in  case,  the  leaning  of 
the  courts  is  to  consider  the  action  one  in  case  founded  on  the  breach 

Ts  Hutch.  Carr.  §  790;    Knifflits  v.  (.^uarles,  2  Brod.  &  B.  102;    Peunsylvania 
R.  Co.  V.  Peoples,  31  Ohio,  537. 
7  4  See  ante,  p.  552. 

LAW  BAILM.— 36 


562  ACTIONS    AGAINST   CARRIERS.  [Ch.   9 

of  dutT/"^     Wbere  exemplary  dnmno^es  arp  sought,  the  declaration 
must  be  on  the  tort,  and  not  in  assumpsit.'^* 

Pleading  and  Evidence. 

There  are  no  principles  of  pleading  peculiar  to  actions  against  car- 
riers of  passengers.  They  must,  of  course,  be  appropriate  to  the  form 
adopted  and  conform  to  the  usual  rules.  The  burden  of  proof  upon 
the  various  questions  which  mav  arise  in  actions  against  carriers  of 
passengers  has  already  been  discussed  in  connection  with  the  specific 
treatment  of  each  question;  otherwise  the  ordinaiy  principles  of  evi- 
dence apply.'' '■ 

The  Measure  of  Damages. 

"The  obligations  or  responsibilities  of  public  carriers  do  not  arise 
altogether  nor  mainly  out  of  contracts;  they  are  principally  imposed 
by  law.  The  refusal  to  undertake  the  conveyance  of  a  passenger 
without  excuse,  or  when  actionable,  is  merely  a  violation  of  a  car- 
riers duty.  He  has  refused  to  contract.  t?o  his  duty  to  carry  with 
care,  though  it  may  to  some  extent  be  regulated  and  restricted  by  con- 
tract, is  imposed  by  law,  and  cannot,  as  is  generally  held,  be  con- 
tracted away.  Hence  actions  against  these  carriers  are  generally  in 
tort  for  negligence,  or  for  misconduct  invohing  a  breach  of  duty. 
Contracts,  however,  are  usually  made  fixing  the  extent  of  the  route, 
the  mode  of  conveyance,  the  kind  of  accommodations,  the  time,  etc.; 
and,  therefore,  actions  founded  upon  such  contracts  may  be  main- 
tained. Whether  the  action  be  upon  the  breach  of  duty  or  for  viola- 
tion of  contract,  to  the  extent  that  they  involve  the  same  acts  and 
omissions,  the  damages  as  measured  by  law  are  substantially  the 
same."  ^^     The  consequences  in  this  class  of  cases  fall  directly  upon 

T5  Hutch.  Carr.  §  795;  Heirn  v.  McCaughan,  32  Miss.  17;  New  Orleans,  J. 
&  G.  N.  R.  Co.  V.  Hurst,  3G  Miss.  660.  "And  at  common  law,  in  the  ab- 
sence of  an  express  contract  or  promise,  'if  from  a  given  state  of  facts  the 
law  raises  a  legal  obligation  to  do  a  particular  act,  and  there  was  a  breach 
of  that  obligation,  and  a  consequential  damage,  although  assumpsit  might  be 
maintained  upon  the  Implied  promise,'  the  more  appropriate  form  of  action 
was  in  case."  Hutch.  Carr.  §  795.  See  Chit.  PI.  135;  Burnett  v.  Lynch,  5  Barn. 
&  C.  589. 

Te  Thomp.  Carr.  p.  546,  §  5;   Id.  p.  573,  §  27. 

T'  See  ante,  pp.  526,  540. 

TsSSuth.  Dam.  §934. 


§    138]  CARRIERS    OF    PASSENGER?.  563 

the  person,  and  in  most  cases  are  not  distinguishable  from  those  of 
a  tort.  In  either  tort  or  contract  the  damages  are  measured  by  the 
probable  or  natural  consequences  of  the  wrong,  but  the  natural  and 
probable  consequences  of  a  breach  of  contract  must  be  determined 
with  regard  to  all  the  facts  known  to  the  parties  at  the  time  the  con- 
tract was  made.  Thus  in  Hobbs  v.  Eailway  Co/*  it  appeared  that 
plaintiff,  with  his  wife  and  children,  were  set  down  at  the  wrong  sta- 
tion, and,  being  unable  to  get  a  conveyance,  they  were  obliged  to 
walk,  the  wife  catching  a  severe  cold.  It  was  held  that  there  could 
be  no  recovery  for  the  expense  of  the  illness,  because  it  was  not  within 
the  contemplation  of  the  parties,  nor  a  probable  consequence  of  hav- 
ing to  walk  home.  The  action  was  on  the  contract.  The  authority 
of  this  decision  was  much  shaken  by  the  opinions  of  Bramwell  and 
Brett,  L.  J.,  in  McMahon  v.  Field,^*'  and  has  been  practically  neutral- 
ized in  most  states  by  holding  that  it  does  not  apply  where  the  action 
sounds  in  tort;  and  cases  of  this  character  have  been  almost  always 
treated  as  sounding  in  tort.®^  Thus,  in  an  action  for  neglect  to  trans- 
port a  passenger  across  the  isthmus  of  Panama  according  to  contract, 
the  plaintiff  was  allowed  to  recover  the  expense  of  a  subsequent  ill- 
ness caused  by  being  left  in  that  unhealthy  country.**^  Brown  v.  Rail- 
way Co.®^  was  a  case  very  similar  to  the  Hobbs  Case.  In  an  elab- 
orate opinion  the  court  reached  a  conclusion  directly  opposite  to  that 
reached  in  the  Hobbs  Case.  Mr.  Sedgwick  has  admirably  stated  the 
pith  of  the  whole  matter  as  follows:  "Upon  the  whole,  these  cases 
seem  to  illustrate  verv  stronglv  n  Tioif|t  "P'^ti  whirh  tno  much  insist- 
ence  cannot  be  laid, — that  the  case  of  Hadley  v.  Baxeudale  intro- 

78  10  Q.  B.  111. 

80  7  Q.  B.  Div.  591. 

81  Alabama  G.  S.  R.  Co.  v.  Heddleston,  82  Ala.  218,  3  South.  53;  Baltimore 
C.  P.  Ry.  Co.  V.  Kemp,  61  Md.  74,  619;  Heirn  v.  McCaughan,  32  Miss.  17; 
Yorton  v.  Railway  Co.,  62  Wis.  367,  21  N.  W.  516.  and  23  N.  W.  401.  It  has 
been  fully  followed  in  some  jurisdictions.  Pullman  Palace  Car  Co.  v.  Barker, 
4  Colo.  344;  Murdock  v.  Railroad  Co..  133  Mass.  15  It  has  been  said, 
where  the  breach  of  contract  was  not  also  a  tort,  the  rule  in  Hobb's  Case  will 
apply.  2  Sedg.  Dam.  §  868;  Cincinnati,  H.  &  I.  R.  Co.  v.  Eaton,  94  lud.  474; 
Brown  v.  Railway  Co.,  54  Wis.  342,  11  N.  W.  356,  911.  No  such  case  has 
been  found. 

82  Williams  v.  Vanderbilt,  28  N.  Y.  217. 

83  54  Wis.  342,  11  N.  W.  356,  911. 


564  ACTIONS    AGAINST    CARRIERS.  [Ch.  9 

dneed  no  new  rule  of  damages.  For  proximate  and  natural  conse- 
quences  of  the  defendant's  act,  whether  it  be  i  breach  of  contract  or 
of  tort,  a  recovery  can  always  be  had.  The  only  nieaning  of  the  rulg 
with  regard  to  thp  cnntpmpla^'nn  of  the  parties  is  that  in  contrn ct  a. 


particular  species  of  proof  aa  to  sppcinl  conspgnences  is  often  avail- 
able, which  is  not  so  in  tort."  ^* 

Same — Exemplary  Damages  and  Mental  Suffering. 

There  is  another  light  in  which  the  form  of  action  becomes  im- 
portant. Where  the  action  is  upon  the  contract,  exemplary  dam- 
ages cannot  be  recovered;  ^^  but  where  the  action  is  for  a  tort, 
founded  on  a  breach  of  the  public  duty,  exemplary  damages  may 
be  given  in  proper  cases.^®  So,  also,  it  is  usually  held  that  dam- 
ages for  mental  suffering  cannot  be  recovered  in  an  action  on  a 
contract,^^  though  the  rule  is  far  from  being  settled,  and  is  denied 
by  many  courts  of  ability.** 

Same — Personal  Injury. 

In  actions  for  personal  injury  to  a  passenger  the  measure  of 
damages  is  usually  the  same  as  in  ordinary  cases  of  personal  in- 
jury. Compensatory  damages  for  pain,  mental  and  physical,  and 
for  loss  of  time,  medical  expenses,  diminution  of  earning  power, 
and  the  like,  may  always  be  recovered.*'  Damages  cannot  be  re- 
covered for  mere  fright,  but,  when  a  nervous  shock  naturally  re- 
sults in  physical  injury,  damages  may  be  recovered  therefor.®" 

Same — Failure  to  Carry  Passenger — Delay. 

Damages  for  failure  to  transport  a  passenger  include  compensa- 
tion for  the  increase  of  cost  of  carriage  by  another  conveyance,  the 

8*  2  Sedg.  Dam.  §  871. 

85  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Hurst.  86  Miss.  660;  Hamlin  v.  Rail- 
way Co.,  1  Hurl.  &  N.  408,  411. 

8  6  Helm  V.  McCaughan,  32  Miss.  17;  Tliomp.  Carr.  p.  546,  §  5;  Id.,  p.  573, 
§  27. 

«T  Walsh  V.  Railway  Co.,  42  Wis.  23. 

S8  See  able  note  by  n.  Campbell  Black  In  11  C.  C.  A.  556.  Also  able  note 
by  William  L.  Clark,  Jr.,  in  15  C.  C.  A.  235. 

•  9  Sedg.  Dam.  §  800.    See,  also,  Id.  §  481  et  seq. 

»o  Bell  V.  Railway  Co.,  26  L.  R.  Ir.  428;  Victorian  Ry.  Com'rs  v.  Ooultas,  L 
R.  13  App.  Cas.  222. 


§    lo8]  ,         CARRIERS    OF    PASSENGERS.        .  _-.  ^  565       "       ,        i.^ 

loss  of  time,  and  other  ordinary  expenses  of  delay.'*       Plaintiff  can'^^^'^^*^**','*" 
incur  only  reasonable  expense  in  avoiding  the  consequences  of  theZS  Z*^*^'**^ 
delay.^^      Whether  or  not  plaintiff  would  have  adopted  the  cours J**^ §^^^*^ 
he  should  have  adopted  if  the  delay  had  occurred  through  his  ownf*-**!**^ 
fault,  and  he  had  not  the  carrier  to  look  to  for  compensation,  has 
been  suggested  as  a  test  of  reasonableness.^^      Substantially  the 
same  principles  are  applicable  in  actions  for  delay. 

Same — Fhilure  to  Carry  to  Destination — Wrongful  Ejection, 

Where  a  carrier  fails  to  carry  a  passenger  to  his  destination,  and 
fiets  him  down  at  some  intermediate  point,  compensation  may  be 
recovered  for  all  the  expenses  of  delay,®*  including  loss  of  time  °'^ 
and  cost  of  a  reasonable  conveyance  to  his  destination. ®®  He  may 
also  recover  compensation  for  the  indignity  of  the  expulsion  from 
the  train,  and,  if  there  are  aggravating  circumstances,  he  may  re- 
cover exemplary  damages.®^  Where,  by  the  fault  of  the  carrier's 
agents,  and  without  the  passenger's  fault,  the  ticket  of  the  passen- 
ger is  not  such  a  one  as  he  should  have  to  entitle  him  to  passage. 

the  carrier  will  be  liable  in  damages  for  expelling  him.'*     It  is  an 

»  ■  ' 

interesting  question  to  determine  the  true  measure  of  damages  in 

81  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135,  17  Atl.  1052;  Eddy  v.  Harris, 
78  Tex.  661.  15  S.  W.  107;  Porter  v.  The  New  England,  17  Mo.  290;  The 
Zenobia,  1  Abb.  Adm.  80,  Fed.  Cas.  No.  18,209;  Williams  v.  Vanderbilt,  28 
M.  Y.  217. 

»2  Sedg.  Dam.  §  862. 

8  8  Le  Blanche  v.  Railway  Co.,  1  C.  P.  Dlv.  286. 

Si  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364;  Pennsylvania  R.  Co.  v.  Connell, 
127  111.  419,  20  N.  E.  89;   can-ying  beyond  Trigg  v.  Railway  Co.,  74  Mo.  147. 

8  5  Hamilton  v.  Railroad  Co.,  53  N.  Y.  25. 

8  8  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Birney,  71  111.  391;  Pennsylvania  R.  Co. 
y.  Connell,  127  111.  419,  20  N.  E.  89;  Francis  v.  Transfer  Co.,  5  Mo.  App.  7; 
Hamilton  v.  Railroad  Co.,  53  N.  Y.  25. 

8  7  Hanson  v.  Railway  Co.,  62  Me.  84;  Yates  v.  Railroad  Co.,  67  N.  Y.  100. 
See,  also,  cases  cited  infra,  notes  103,  104. 

8  8  Lake  Erie  &  W.  R.  Co.  v.  Fix,  88  Ind.  381;  Kansas  City,  M.  &  B.  R.  Co. 
y.  Riley,  68  Miss.  765,  9  South.  443;  MacKay  v.  Railroad  Co.,  84  W.  Va.  65,  11 
S.  E.  737;  Murdock  v.  Railroad  Co.,  137  Mass.  293;  Huflford  v.  Railroad  Co., 
64  Mich.  631,  31  N.  W.  544;  Id.,  53  Mich.  118,  18  N.  W.  580;  Yorton  v.  liail- 
road  Co.,  54  Wis.  234, 11  N.  W.  482;  Id.,  62  Wis.  367,  21  N.  W.  516.  But  If  by 
mutual  mistake,  or  by  fault  of  the  passenger,  hio  ticket  Is  one  which  does 
not  entitle  him  to  passage,  he  may  properly  be  ejected,  even  though  he  may 


666  ACTIONS    AGAINST    CARRIERS.  [Cll.   9 

such  a  case.  What  are  the  natural  and  probable  consequences  of 
such  a  wrong?  This  must  be  answered  with  a  view  to  the  nature 
of  the  wrong  and  the  time  it  was  committed.  It  has  been  con- 
tended that  the  only  natural  and  legitimate  result  of  selling  plain- 
tiff a  wrong  ticket,  or  depriving  him  of  a  proper  one,  is  to  compel 
him  to  pay  his  fare  a  second  time;  and  that  he  commits  a  breach 
of  social  duty  in  failing  to  protect  himself  thus,  at  trifling  expense, 
from  the  consequences  of  the  fault  or  mistake  of  the  carrier's  serv- 
ant.^* If  he  does  so,  the  amount  paid,  with  interest,  furnishes  the 
measure  of  damages.  But  we  apprehend  that  he  is  not  compelled 
to  do  so.  >,He  may  elect  to  leave  the  train,  and  in  that  case  may 
recover  not  only  the  amount  of  the  additional  fare  which  he  is  sub- 
sequently obliged  to  pay  in  order  to  reach  his  destination,  but  all 
damages  sustained  by  him  as  a  direct  and  natural  consequence  of 
the  ejection.^"**  The  reason  for  this  is  that  the  rule  of  avoidable 
consequences  does  not  require  one  to  anticipate  a  wrong,  and  to 
take  steps  to  avoid  its  consequences,  before  it  is  committed.  He  is 
entitled  to  presume  that  no  wrong  will  be  committed.  The  rule 
merely  requires  one  who  has  been  already  injured  to  use  all  reason- 
able means  to  make  the  loss  as  light  as  possible.  Whether  it  is  a 
passenger's  duty,  therefore,  to  pay  his  fare  a  second  time,  and  thus 
avoid  ejection,  depends  upon  when  the  wrong  or  breach  of  duty  is 
committed.  This  is  clearly  at  the  time  the  ejection  takes  place. 
Where  the  action  is  for  the  breach  of  the  contract  or  duty  to  carry, 
this  is  obviously  true.  But  it  is  equally  true  where  the  action  is 
founded  on  the  neglect  or  mistake  of  the  carrier's  servant  in  regard 
to  the  passenger's  ticket.  In  such  case  the  wrong  is  not  commit- 
ted until  the  neglect  has  resulted  in  damage;  that  is  to  say,  until 
the  passenger  has  been  expelled  from  the  train.  Negligence  with- 
out damage  is  not  a  wrong. 
As  between  the  passenger  and  the  conductor  who  ejects  him  the 

have  a  right  of  action  against  the  carrier  for  selling  him  an  improper  ticket. 
Yorton  v.  Railway  Co.,  54  Wis.  234,  11  N.  W  482:  Id.,  62  Wis.  367,  21  N.  W. 
(516;  Bradshaw  v.  Railroad  Co.,  135  Mass.  407;  Frederick  v.  Railroad  Co., 
•dl  Mich.  .342. 

»»  Yorton  V.  Railway  Co.,  62  Wis.  367,  21  N.  W.  516;    2  Sedg.  Dam.  §  865. 

100  Yorton  v.  Railway  Co.,  62  Wis.  3G7,  371,  21  N..  W.  516. 


§    138]  CARRIERS    OF    PASSENGERS.  567 

ticket  is  conclusive  evidence  as  to  the  passenger's  right  of  pas- 
sage.^°^  If  the  passenger  has  not  a  proper  ticket,  the  conductor 
may  eject  him/"^  and,  though  the  carrier  is  liable  for  such  ejection 
because  it  is  a  natural  and  probable  consequence  of  the  negligence 
of  a  prior  servant  in  not  furnishing  the  passenger  with  a  proper 
ticket,  he  is  not  liable  for  exemplary  damages,  where  the  conductor 
acts  considerately  in  making  the  ejection.^"*  It  is  generally  held, 
however,  that  a  passenger  may  recover  compensatory  damages  for 
mental  suffering  arising  from  the  indignity  of  being  expelled  from 
a  train,  even  though  the  conductor  acted  considerately.^"* 

101  See  ante,  p.  510.  ^--w- ^  « 

103  "If  a  passenger  pay  a  railroad  agent  fare  for  a  certain  trip,  and  by  mis- 
take of  the  agent  is  given  a  ticket  not  answering  for  that  trip,  but  one  in  an 
opposite  direction,  and  the  conductor  refuses  to  recognize  such  ticket,  and 
demands  fare,  which  the  passenger  falls  to  pay,  ejection  of  the  passenger 
from  the  train  without  unnecessai-y  force  will  not  be  ground  of  action  against 
the  company  as  for  a  tort;  but  the  action  may  and  must  be  based  on  the 
breach  of  contract  to  convey  the  passenger."  MacKay  v.  Railroad  Co.,  34  W. 
Va.  65,  11  S.  E.  737. 

108  Fitzgerald  v.  Railroad  Co.,  50  Iowa,  79;  Philadelphia,  W.  &  B.  R.  Co., 
V.  Hoeflich,  62  Md.  300;  Logan  v.  Railroad  Co.,  77  Mo.  663;  Hamilton  v.  Rail- 
road Co.,  53  N.  Y.  25;  Yates  v.  Railroad  Co.,  67  N.  Y.  100;  Tomlinson  v.  Rail- 
road Co.,  107  N.  C.  327,  12  S.  E.  138. 

104  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364;  Chicago  &  N.  W.  Ry  Co.  v. 
Williams,  55  111.  185;  Chicago  &  N.  W.  Ry.  Co.  v.  Chisholm,  79  111.  584;  Penn- 
sylvania R.  Co.  v.  Connell,  112  111.  295;  Lake  Erie  &  W.  Ry.  Co.  v.  Fix,  88 
Ind.  381;  Shepard  v.  Railway  Co.,  77  Iowa,  54,  41  N.  W  564;  Carsten  v.  Rail- 
road Co.,  44  Minn.  454,  47  N.  W.  49;  Hamilton  v.  Railroad  Co.,  53  N.  Y.  25; 
Stutz  V.  Railroad  Co.,  73  Wis.  147,  40  N.  W.  653;  2  Sedg.  Dam.  §  865,  It 
has  been  held  that,  where  the  conductor  acts  considerately,  the  plaintiff  should 
have  felt  no  sense  of  insult,  and  therefore  cannot  recover  damages  for  the 
indignity.  Paine  v.  Railroad  Co.,  45  Iowa,  569;  Fitzgerald  v.  Railroad  Co., 
50  Iowa,  79;  Batterson  v.  Railway  Co.,  49  Mich.  184,  13  N.  W.  508.  Such 
Is  not  the  general  rule. 


TABLE  OF  CASES  CITED. 


[the  figures  refer  to  pages.] 


Abbe  V.  Eaton.  333. 

Abbey  v.  The  Robert  L.  Stevens,  813. 

Abbott  V.  Bradstreet,  313,  392,  398. 

Abraham  v.  Nunn,  24,  93,  236. 

Abrams  v.  Railway  Co.,  416,  429. 

Adams,  The  Ben,  453. 

Adams  v.  Blankenstein,  478. 

V.  Broughton,  91. 

V.  Carlisle,  30. 

V.  Clark,  553. 

V.  Clem,  298,  300. 

V.  O'Connor,  151. 

V.  Sturges,  113. 
Adams  Exp.  Co.  v.  Darnell,  351,  460. 

T.  Harris,  348,  425,  436. 

V.  Haynes,  421,  442. 

V.  H'Olmes,  425. 

r.  Nock,  442. 

V.  Reagan,  430. 

V.  Sier,  442. 

V.  Stettaners,  421,  425,  442. 

V.  Wilson,  469,  472. 
Adderly  v.  Storm,  154. 
Adoue  V.  Seeligson,  146. 
Aetna  Ins.  Co.  v.  Wheeler,  436,  466. 
Agnew  V.  The  Contra  Costa,  376. 

V.  Johnson,  116,  135. 
Aigen  v.  Railroad  Co.,  475. 
Aiken  v.  Buck,  91. 

V.  Railway  Co.,  472. 
Ainsworth  v.  Backus,  54. 
Alrey  v.  Merrill,  433. 
Alabama  G.  S.  R.  Co.  v.  Heddleston, 
563. 

V.  Little,  425. 

V.  Sellers,  537. 

V.  Ya  Through,  492. 
Alabama  &  G.  R.  Co.  v.  Thomas,  421. 


Alabama  &  T.  R.  R.  Co.  t.  Kldd,  32, 

243,  450,  459. 
Alabama  &  V.  R.  Co.  v.  Purnell,  517. 

V.  Searles,  403. 
Alair  v.  Railroad  Co.,  429. 
Albin  V.  Presby,  287,  288,  29a 
Alden  v.  Carver,  349. 

V.  Pearson,  31. 

V.  Railroad  Co.,  521. 
Aldridge  v.  Railway  Co.,  470. 
Alexander  v.  Greene,  303,  313,  421. 
Alexandria,  L.  &  H.  R.  Co.  v.  Burke, 

157,  164,  167. 
Aline,  The,  428. 
Allan  V.  Gripper,  481. 
Allegheny  V.  R.  Co.  v.  Findley,  529. 
Allen  V.  Delano,  98. 

v.  Ham,  223. 

V.  King,  157. 

V.  Megguire,  112. 

V.  Merchants'  Bank,  236. 

V.  Railroad  Co.,  480,  481. 

V.  Sackrider,  305. 

T.  Sewall,  555. 

V.  Smith,  271,  296,  29a 

V.  Williams,  127,  146. 
Allender  v.  Railroad  Co.,  500. 
Allerton  v.  Railroad  Co.,  539. 
Ailing  V.  Boston  &  A.  R.  Co.,  384,  388. 
Allison  V.  Railroad  Co.,  522. 
Alsager  v.  St.  Katherine  Dock  Co.,  348, 
Alston  V.  Harring,  405. 
Ambler  v.  Ames,  163. 
America,  The,  352. 

American  Contract  Co.  v.  Cross,  382. 
American  Dist  TeL  Co.  v.  Walker,  235. 
American    Exch.   Nat.   Bank   v.   New 

York  B.  &  P.  Co.,  139. 
American  Exp.   Co.   v.   Fletcher,  477, 
478. 


LAW  BAILM. 


(569) 


570 


CASES  CITED. 


[The  flgrres  refer  to  pages.] 


American  Exp.  Co.  v.  Greenhalgh,  479. 
V.  Hockett,  310. 
V.  Lesem,  451. 
V.  Perkins,  3G6. 
V.  Sands,  425. 

V.  Second  Nat.  Bank,  468,  470. 
T.  Smith,  3G9,  402. 
V.  Stack,  30,  477,  478. 
American  Merchants'  Union  Exp.  Co. 
V.  Milk,  477,  478. 
V.  Schier,  449. 
V.  Wolf,  449,  450. 
American  Steamship  Co.  v.  Bryan,  394, 

898,  399. 
American   Sugar-Refining  Go.   v.    Mc- 

Ghee,  477. 
American  Union  Exp.  Co.  v.  Robinson, 

449. 
Ames  V.  Belden,  28,  51,  203,  302. 
V.  Palmer,  349. 
V.  Railroad  Co.,  547. 
Amies  V.  Stevens,  405. 
Amory  v.  Flyn,  52. 
Amos  V.  Sinnott,  160. 
Anchor  Line  v.  Dater,  441,  469.  555. 
Anderson  v.  Foresman,  61,  63,  64,  95. 
V.  Philadelphia     Warehouse     Co., 

155. 
V.  Railroad  Co.,  506. 
Andrew  v.  Morrhouse,  342. 
Andrews  t.  Railroad  Co.,  389.  522. 

V.  Richmond,  7,  8,  246. 
Androscoggin  R.  Co.  v.  Auburn  Bank, 

153. 
Angle  V.  Railroad  Co.,  469,  472. 
Angus  V.  McLachlan,  197,  296. 
Ann,  The  Mary,  313. 
Annas  v.  Railroad  Co.,  531. 
Anne,  The,  182. 
Anniston  &  A,   R.   Co.   v.   Ledbetter, 

456,  458. 
Anonymous,  58,  553. 
V.  Jackson,  414. 
Ansell  V.  Waterhouse,  322,  551,  652. 
Anthony  v.  Haney,  44. 

V.  Railroad  Co.,  521. 
Appleby  v.  Myers,  217,  219. 

V.  Railway  Co.,  512. 
Appleton  V.  Donaldson,  11,  120. 
Arbuckle  v.  Thompson,  546. 
Arcade  Hotel  Co.  v.  Wiatt,  267,  273, 

285. 
Archer  v.  Walker,  51,  82,  94. 


Archibald  v.  Argall,  163. 
Arctic  Fire  Ins.  Co.  v.  Austtn,  313. 
Arendale  v.  Morgan,  118,  164,  169. 
Arent  v.  Squire,  241. 
Armington  v.  Houston,  10. 
Armistead  v.  White,  280,  285. 

V.  Wilde,  282,  283. 
Armory  v.  Delamirie,  20,  47,  59,  90. 
Armour  v.  McMlchael,  137. 

V.  Railroad  Co.,  437. 
Armstrong  v.  Express  Co.,  377,  416. 
Arnold  v.  Halenbake,  311. 

V.  Prout,  548. 

V.  Railroad  Co.,  421,  432,  492,  631, 
552. 

V.  Steamship  Co.,  452. 
Anx)wsmith  v.  Railroad  Co.,  494. 
Arthur  v.  The  Cassius,  451. 

V.  Railroad  Co.,  8,  67,  248. 
Ash  V.  Putnam,  60,  348. 

V.  Savage,  107. 
Ashmore   v.   Transportation   Co.,   818, 

415,  434. 
Ashton's  Appeal,  134,  143. 
Aston  V.  Heaven,  311. 
Atchison  v.  Railway  Co.,  544. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Brewer, 
381. 

V.  Bryan.  411. 

V.  Dwelle,  534. 

V.  Gants,  511. 

V.  Roach,  540,  541. 
Atchison  &  N.  R.  Co.  v.  Fllnn,  527. 

V.  Miller,  331,  332. 

V.  Washburn,  375,  415. 
Atkins  V.  Gamble,  159. 
Atkinson  v.  Mallng,  123. 

V.  Ritchie,  411. 

V.  Sellers,  269,  274. 
Atlanta  &  R.  A.  L.  Ry.  Co.  ▼.  Ayera, 

528. 
Atlanta  &  W.  P.  R.  Co.  v.  Texas  Grate 

Co.,  472. 
Atlantic   Exp.   Co.   v.   Wilmington   & 

W.  R.  Co.,  329,  330. 
Atlantic  Mut.  Ins.  Co.  v.  McLoon,  55L 
Atlantic  Nat.  Bank  of  New   York  v. 

Franklin,  141. 
Atlas  Bank  v.  Doyle,  158. 
Atwater  v.  Mower,  108. 

v.  Railroad  Co.,  507,  508. 

v.  Sawyer,  275. 
Audenried  v.  Railroad  Co.,  335. 


OASES   CITED. 


671 


[The  flffures  refer  to  pnjres.l 


Auerback  v.  Railroad  Co.,  513. 

Auge  V.  Varlol,  130. 

Augusta  &  S.  R.  Co.  v.  McElmurry, 

528. 
Aultman's  Appeal,  154. 
Aurentz  V.  Porter,  46,  182. 
Austin  V.  Miller,  194. 

V.  Railway  Co.,  28,  495,  498. 
V.  Seligman,  7. 
Austin  &  N.  N.  R.  Co.  v.  Beatty,  26. 
Avinger  v.  Railway  Co.,  308. 
Ayers   v.    South    Australian   Bantling 

Co.,    119. 
Aymar  v,  Astor,  240. 
Ayres  v.  Railroad  Corp.,  308,  321,  325. 

875,  433,  442,  558. 


Babcock  v.  Gill,  57. 

V.  Herbert,  311. 

V.  Lawson,  116. 

V.  Mui-phy,  31,  241. 

V.  People's  Sav.  Bank,  243. 

V.  Railroad  Co.,  436. 
Bacharach  v.  Freight  Line,  846,  847. 
Backhouse  v.  Bonomi,  54. 

V.  Sneed,  357. 
Bacon  v.  Lamb,  173. 
Bacot  V.  Parnell,  210,  211. 
Badlam  v.  Tucker,  90,  111,  123,  130, 

164. 
Baggett  V.  McCormack,  91. 
Bags  of  Linseed,  348. 
Bahia  &  S.  F.  Ry.  Co.,  In  re,  144. 
Bailey  v.  Adams,  232. 

V.  Bensley,  7,  8,  24.5. 

V.  Colby,  134,  198,  253. 

V.  Quint,  3-18. 

V.  Railroad  Co..  477. 
Balrd  v.  Daly,  237,  302. 
Baker  v.  Brinson,  355. 

V.  Dessauer,  279. 

V.  Drake,  126,  161, 

V.  Railroad  Co.,  318,  870,  470,  538. 
552. 
Baldwin  v.  Bradley,  112,  118,  151. 

V.  Canfield,  20. 

V.  Collins.  440. 

V.  Ely,  134. 

V.  Express  Co.,  810,  449,  450. 

V.  Railway  Co.,  535. 


Baldwin  v.  Steamship  Co.,  831,  832. 
Balfe  V.  West.  15,  55.  183. 
Ball  V.  Railway  Co.,  415. 

V.  Stanley,  159,  175,  176. 
Ballard  v.  Burgett,  142. 
Balleutine  v.  Railroad  Co.,  410. 
Baltimore  C.  P.  Ry.  Co.  v.  Kemp,  663. 

V.  Sewell,  101. 
Baltimore,  P.  &  C.  R.  Co.  v.  McDonald, 

515,  533. 
Baltimore  Steam  Packet  Co.  v.  Smith, 

381. 
Baltimore  &  O.  Exp.  Co.  v.  Cooper.  431. 
Baltimore  &  O.  R.  Co.  v.  Adams  Exp. 
Co.,  342. 
V.  Campbell,  443,  444,  473. 
V.  Carr,  502,  5G5. 
V.  O'Donnell,  365. 
V.  Pumphrey,  551. 
T.  Schumacher,  27,  468. 
V.  State,  526. 
V.  Sulphur    Springs    School    Dlst, 

360. 
V.  Wilkens,  316. 
Baltimore  &   Philadelphia  Steamboat 

Co.  V.  Brown,  318.  468. 
Bancroft  v.  Transportation  Co.,  436. 
Banfield  v.  Whipple.  202. 
Bank  v.  Brown,  377. 
V.  Lanier,  119,  127. 
V.  Wisconsin  Cent.  Ry.  Co.,  437. 
Bank  of  Batavia  v.  New  York,  L.  E.  & 

W.  R.  Co..  310.  318.  437. 
Bank  of  British  Columbia  v.  Marshall, 

108,  164. 
Bank  of  Chenango  v.  Hyde,  140. 
Bank     of     Columbia     v.     Patterson's 

Adm'r,  221. 
Bank  of  Kentucky  v.  Adams  Exp.  Co., 
310,  456.  470. 
V.  Schuylkill  Bank,  144. 
Bank  of  Metropolis  v.   New  England 

Bank,  112,  137. 
Bank  of  Montgomery  v.  Reese,  161. 
Bank  of  New  South  Wales  v.  Owston, 

209. 
Bank  of  New  York  v.  Vanderhorst,  136, 

140. 
Bank  of  Old  Dominion  v.  Dubuque  & 

P.  R.  Co.,  168. 
Bank  of  Orange  v.  Brown,  305. 
Bank  of  OswegK)  v.  Doyle,  32,  243. 


572 


CASES  CITED. 

[The  figures  refer  to  pages.] 


Bank  of  Rochester  v.  Jones,  127,  146, 

148. 
Bank  of  Sallna  v.  Babcock,  139. 
Bank  of  U.  S.  v.  Peabody,  156. 
Bank  of  UUca  v.  M'Kinster,  57. 
V.  Smalley,  127. 
V.  Smedes,  67. 
Bansemer  v.  Railway  Co.,  449,  459. 
Barber  v.  Meyerstein,  123. 
Bardsley  v.  Delp,  139. 
Baring  v.  CJorrie,  115. 
Barker,  In  re,  153. 
V.  Coflin,  510,  513. 
V.  Havens,  334,  346. 
V.  Miller,  90. 
V.  Roberts,  7. 
Barmby  v.  Wolfe,  158. 
Barnard  v.  Campbell,  146,  150. 
Barney  v.  Earle,  137. 
V.  Prentiss,  440. 
V.  Steamboat  Co.,  503. 
Bams  V.  Marshal,  342. 
Barnum  v.  Terpenning,  23. 
Barrett  v.  Cole,  172. 

V.  Railway  Co.,  508. 
Barron  v.  Eldredge,  314-316,  459. 
Barrott  v.  Car  Co.,  312. 
Barrow  v.  Paxtooi,  107,  12L 

V.  Rhlnelander,  156. 
Barry  v.  Longmore,  248. 
Barter  v.  Wheeler,  465,  469,  473. 
Bartholomew  v.  Railroad  Co.,  463. 
Bartlett  v.  Carnley,  347. 
V.  Johnson,  132. 
V.  The  Philadelphia,  448. 
V.  Railroad  Co.,  410,  415. 
V.  The  Sultan,  34. 
Bartram  v.  McKee,  349. 
Bass  V.  Pierce,  250. 

V.  Railroad  Co.,  507,  514,  523,  536. 
V.  Upton,  222. 
Bassett  v.  Spofford,  344. 
Bast  V.  Bank,  158. 
Bastard  v.  Bastard,  326. 
Basten  v.  Butter,  218,  220. 
Bates  V.  Railroad  Co.,  530,  531. 

V.  Stanton,  84,  176,  479. 
Batson  v.  Donovan,  26,  27,  70,  866,  386, 

445,  448. 
Batterson  v.  Railway  Co.,  567. 

V.  Vogel,  283,  291. 
Batton  V.  Railroad  Co.,  524. 
Baugh  V.  Kirkpatrick,  130. 


Baugher  v.  Wilklns,  199. 
Baxendale  v.  Hart,  317. 

V.  Railway  Co.,  836-338,  841,  842. 
Bay  V.  Coddington,  138. 
Bayard    v.    Farmers'    &    Mechanic*' 

Bank,  117. 
Bayles  v.  Railway  Co.,  337,  340. 
Bayliss  v.  Fisher,  89,  93. 
Beach  v.  Parmeter,  527. 
Beaconsfleld,  The,  412. 
Beadell,  In  re,  506. 
Beal  V.  Essex  Sav.  Bank,  155. 

V.  Railroad  Co.,  404. 
Beale  v.  Posey,  267,  275,  291,  292. 

V.  South  Devon  Ry.  Co.,  94,  202. 
Beall  V.  White,  227. 
Beard  v.  Railway  Co.,  324,  364,  369, 

402-404,  525. 
Beardslee  v.  Richardson,  31,  57,  61,  74, 

92. 
Beatty  v.  Sylvester,  133. 
Beauchamp  v.  Silverlock,  182. 
Becher  v.  Railroad  Co.,  390. 

V.  Wells  Flouring  Mill  Co.,  153. 
Bechtel  v.  Sheafer,  33,  34. 
Beck  V.  Evans,  303,  406,  414,  415. 
Becke  v.  Railway  Co.,  528. 
Becker  v.  Haynes,  287. 
Beckford  v.  Crutwell,  404. 
Beckwith  v.  Frisby,  410. 

V.  Sibley,  163. 
Beebe  v.  Ayres,  514. 
Beeman  v.  Lawton,  171. 
Belden  v.  Perkins,  28,  134,  160,  167. 
Belfast,  The,  v.  Boon,  364. 
Belfast,  etc.,  R.  Co.  v.  Keys,  383,  387. 
Belger  v.  Dinsmore,  442. 
Bell  V.  Bell,  135. 

V.  Hanover  Nat  Bank,  171. 
V.  Monahan,  22. 
v.  Moss,  481. 
V.  Railway  Co.,  564. 
V.  Reed,  359,  550. 
Beller  v.  Schultz,  24.  31,  90,  92,  94. 
Bellsdyke  Coal  Co.  v.  North  British  Ry. 

Co.,  337,  338. 
Belmont  Coal  Co.  v.  Richter,  46. 
Ben  Adams,  The,  453. 
Benbow  v.  North  Carolina  R.  Co.,  447. 
Benedict  v.  Schaettle,  480. 
Benett  v.  Steamboat  Co.,  811,  467,  491. 
Benjamin  v.  Levy,  546. 
v.  Stremple,  151,  197. 


CASES   CITED. 


673 


[The  figures  refer  to  pases.] 


Benje  v.  Oreagh'i  Adm'r,  30,  253. 
Bennet   v.    Mellor,   268-270,    272,   274, 

287. 
Bennett  v.  Byram,  409-411. 

V.  Button,  438,  491,  502,  503,  517. 

T.  Express  Co.,  318,  368,  449. 

V.  O'Brien,  27,  31,  85,  87,  92,  93. 

V.  Railroad  Co.,  431. 

V.  Transportation  Co.,  528. 
Benson,  Ex  parte,  336. 
Bentinck  v.  Bank,  145. 
Bei'cich  v.  Marye,  144. 
Berg  V.  Railroad  Co.,  467,  470. 

V.  Steamship  Co.,  471,  472. 
Berglieim  v.  Railway  Co.,  315. 
Berkshire  Woolen  Co.  v.  Proctor,  271. 

272,  280,  283-285,  290. 
Bernstein  v.  Railroad  Co.,  538. 

V.  Sweeny,  259,  290. 
Berry  v.  Cooper,  355,  415. 

V.  Marix,  240. 

V.  Railway  Co.,  491. 
Best  V.  Crall,  135. 
Betsey,  The,  182. 
Betteley  v.  Reed,  34,  85. 
Betts  V.  Loan  Co.,  367. 

V.  Railway  Co.,  405. 
Bevan  v.  Waters,  222-225. 
Beverly  v.  Brooke,  204. 
Biddle  v.  Bond,  35,  79,  100,  479. 
Biebinger  v.  Continental  Bank,  120, 
Bigelow  V.  Heaton,  348. 

V.  Walker,  163,  164. 
Bills  V.  Railroad  Co.,  402. 
Bingham  v.  Lamping,  368. 
Bird  V.  Brown,  482. 

V.  Cromwell,  402. 

V.  Railroad,  345,  346. 
Bird  of  Paradise,  The,  34a 
Birkett  v.  Willan,  448. 
Birley  v.  Gladstone,  346. 
Birmingham  v.  Rochester  City  &  B.  R. 

Co.,  540. 
Bischoff  V.  Railway  Co.,  518. 
Bishop  V.  Shillito,  14. 

V.  Williamson,  487. 
Bissell  V.  Pearce,  227. 

V.  Price,  346. 

V.  Railroad  Co.,  421,  431,  432,  468, 
519,  521,  531,  540. 
Black  V.  Baxendale,  409. 

V.  Bogert,  171. 

V.  Railroad  Co.,  359,  363,  431. 


Black  V.  Reno,  163. 

V.  Transportation  Co.,  416,  425,  427, 
429,  433. 
Blackham  v.  Gresham,  484. 
Blackstock  v.  Railroad  Co.,  409. 
Blair  v.  Chllds,  115. 

V.  Railway  Co.,  494. 
Blake  v.  Kimball,  12,  16,  18,  20,  68,  182. 

V.  Nicholson,  281. 

V.  Railway  Co.,  527. 
Blakemore  v.  Railway  Co.,  84,  88,  529. 
Blanchard  v.  Isaacs,  318,  396. 

V.  Page,  543-545,  548. 

V.  Stevens,  137. 
Bland  v.  Railroad  Co.,  535. 

V.  Womack,  57,  63,  64,  95. 
Blln  V.  Mayo,  239,  244,  247. 
Bliss  V.  Schaub,  196. 
Bliven  v.  Railroad  Co.,  34,  35,  79,  368. 
Block  V.  Railroad  Co.,  473,  474. 
Blodgett  V.  Blodgett,  109. 
Blood  V.  Erie  Dime  Sav.  &  Loan  Co., 

160,  167. 
Bloomingdale  v.  Railroad  Co.,  480. 
Blossom  V.  Dodd,  441,  443,  444. 

V.  Griffln,  314. 
Blower  v.  Railroad  Co.,  375,  405. 
Blum  V.  The  Caddo,  544,  546. 

V.  Car  Co.,  262,  203,  312. 
Blumantle  v.  Fitchburg  R.  Co.,  388. 
Blumenthal  v.  Brainerd,  312,  351,  416, 
438,  447,  457. 

V.  Railroad  Co.,  387,  888. 
Blydenstein  v.  New  York  Securlt>   & 

Trust  Co.,  149. 
Blyth     V.     Birmingham     Waterworks 

Co.,  24. 
Blythe  v.  Railroad  Co.,  358,  360,  362. 
Boardman  v.  Holmes,  113. 
Board  of  Education  of  Village  of  Pine 

Island  V.  Jewell,  235. 
Bodenhammer  v.  Newsom,  172. 
Bod  well  V.  Bragg,  290. 
Boehl  v.  Railway  Co.,  415,  429. 
Boehm  v.  Combe,  315. 
Bogert  V.  Haight,  239. 
Boggs  V.  Martin,  348. 
Bohannon  v,  Springfield,  8. 
Bohler  v.  Ownes,  283. 

V.  Tappan,  110. 
Boice  V.  Railroad  Co.,  510,  518. 
Boies  V.  Hartford  &  N.  H.  R.  Co.,  81, 
241. 


674 


CASES   CITED. 

[The  figures  refer  to  pages.] 


Bolan  ▼.  Williamson,  487. 
Boland  v.  Railroad  Co.,  527. 
Bolton  V.  Railway  Co.,  481. 
Bomar  v.  Maxwell,  309,  383. 
Bonce  v.  Railway  Co.,  310. 
Bond  V.  Wlltse,  135. 
Bonito  V.  Mosquera,  114. 
Bonner  v.  Marsh,  546. 

V.  Welborn,  259,  260. 
Bonsey  r.  Amee,  107,  171. 
Boon  V.  The  Belfast,  364. 
Boormau  v.  Express  Co.,  442. 
Booth  V.  Terrell,  89,  91,  98,  99. 
Bordeaux  v.  Railway  Co.,  509. 
Borland  v.  Clark,  145. 

V.  Nevada  Bank,  155. 
Boroughs  V.  Bayne,  479. 
Boseowitz  v.  Express  Co.,  403,  415. 
Boskenna  Bay,  The,  455. 
Bosliowitz  V.  Express  Co.,  421. 
Boson  V.  Sandford,  205,  550,  555. 
Boston,  The,  452,  453. 
Boston  &  L.  R.  Co.  v.  Proctor,  513. 
Boston  &  M.  R.  Co.  v.  Chipman,  513. 

V.  WaiTior  Mower  Co.,  549. 
Bostwick  V.  Champion,  473,  475,  541, 

V.  Railroad  Co.,  407. 
Boswell  V.  Clarksons,  82. 
Bott  V.  McCoy,  114,  115. 
Bottenberg  v.  Nixon,  8,  249. 
Boughton  V.  U.  S.,  112. 
Bowden  v.  Johnson,  154. 
Bowdle  V.  Railway  Go.,  522. 
Bowen  v.  Morris,  19. 

V.  Sullivan,  58. 
Bowers  v.  Railroad  Co.,  513. 
Bowie  V.  Napier,  115. 
Bowlin  V.  Lyon,  275. 

V.  Nye,  553. 
Bowman  v.  Hilton,  346. 

V.  Teall,  89,  93,  311,  363,  410,  411. 

V.  Van  Kuren,  135,  136. 
Boyce  v.  Anderson,  311,  378. 
Boylan  v.  Railroad  Co.,  513. 
Boynton  v.  Payrow,  13,  18,  122,  166, 

169. 
Boyson  v.  Coles,  114,  116. 
Bradley  v.  Baylis,  206. 

V.  Davis,  21. 

V.  Parks,  134. 

v.  Waterhouse,  70. 
Bradshaw   v.   Railroad  Oo.,  Oil,   B12, 
506. 


Brady  v.  Whitney,  194, 
Brainard  v.  Reavls,  141. 
Bralthwaite  v.  Power,  333. 
Brandao  v.  Barnett,  112. 
Branson  v.  Heckler,  116. 
Brass  v.  Maitland,  325. 
Bray  v.  Mayne,  202. 
Breeding  v.  Thrielkeld,  82. 
Brehme  v.  Express  Co.,  415,  442. 
Bretherton  v.  Wood,  311,  491,  553. 
Bretz  V.  Diehl,  6,  245. 
Brewer  v.  Railroad  Co.,  530. 
Brewster  v.  Hartley,  120. 
Bricker  v.  Railroad  Co.,  495. 
Briddon  v.  Railroad  Co.,  410. 
Bridgeport  Bank  v.  New  York  &  N.  H. 

R.  Co.,  144. 
Bridgeport  City  Bank  v.  Welch,  137. 
Bridges  v.  Railway  Co.,  538. 
Bridgman  v.  The  Emily,  556. 
Brien  v.  Bennett,  491,  500, 
Briggs  V.  Oliver,  169. 

V.  Railroad  Co.,  233,  234,  845,  846, 
350,  553. 

V.  Vanderbilt,  473,  475. 

V.  Walker,  130,  131. 
Bright  V.  Wagle,  109. 
Brind  v.  Dale,  30,  311. 
Bringard  v.  Stellwagen,  194. 
Bringloe  v.  Morrice,  89,  90,  97. 
Brintnall  v.  Railroad  Co.,  476. 
Bristol  V.  Wilsmore,  348. 
Bristol  &  E.  Ry.  Co.  v.  Collins,  469, 

471. 
British  &  Foreign  Marine  Ins.  Co.  v. 

Gulf,  C.  &  S.  F.  Ry.  Co.,  412,  413. 
Brittain  v.  Barnaby,  342,  343,  349. 
Britton  v,  Aymar,  22,  24. 

V,  Harvey,  111. 

V.  Railway  Co.,  524. 
Broadwater  v.  Blot,  250. 
Broadwood   v.  Granara,  294. 
Brock  V.  Gale,  382. 
Bronnenburg  v.  Charman,  41. 
Brooke  v.  Pickwick,  309,  415,  440. 

V.  Railroad  Co.,  316,  437,  514,  540. 
Brookmau  v.  Hamill,  222,  248. 

V.  Metcalf,  166. 
Broome  v.  Wooter,  91. 
Brouncker  v.  Scott,  334. 
Brower  v.  Peabody,  546. 
Brown  v.  Bemeut,  107,  109,  121. 

V.  Billington,  9. 


CASES   CITED. 


676 


[The  figures  refer  to  pajres.] 


Brown  v.  Clayton,  869. 

V.  Clegg,  313. 

T.  Cook,  39,  75,  80. 

V.  Denison,  2-lG,  303. 

V.  Express  Co.,  855,  416,  438. 

V.  Harris,   517. 

V.  Hitchcock,  7,  237,  239. 

V.  LeaVltt,  139. 

V.  Railroad  Co.,  24,  375,  878,  442, 
459,  493,  495,  503,  607,  511, 
514,  535,  536,  563. 

V.  Runals,  132. 

V.  Shaw,  59. 

V.  Steamship  Co.,  429,  557. 

V.  Tanner,  349. 

V.  Thayer,  33,  79. 

V.  Ward,  165,  166. 

V.  Warren.  12,  18,  122,  123. 
Browne  v.  Johnson,  30,  241. 
Brownell  v.  Hawkins,  151. 
Browning  v.  Hauford,  46,  182. 

V.  Railroad  Co.,  430. 
Bruce  v.  Garden,  120. 

V.  TUson,  97. 
Brulard  v.  Albion,  537. 
Brumby  v.  Smith,  217,  219. 
Brundage  v.  Camp,  117. 
Brunswick  «fe  Baike  Co.  v.  Hoover,  14. 
Brusch  V.  Railway  Co.,  522. 
Brush  V.   Scribner,  137,  139. 
Brusley  v.  Hamilton,  79. 
Bruty  V.  Railroad  Co.,  381. 
Bryan  v.  Railway  Co.,  531. 

V.  Spurgin,  411. 
Bryant  v.  Crosby,  9. 

V.  Railroad  Co.,  367,  403. 

V.  Rich,  523. 
Bryson  v.  Rayner,  107,  132,  159,  165, 

167,  168. 
Buchanan  v.  International  Bank,  113, 
136,    142. 

V.  Smith.  89,  93,  187,  191. 
Buck  V.  Ingersoll,  164. 
Buckingham  v.  Fisher,  239. 
Buckland  v.  Adams  Exp.  Co.,  310,  816, 

472. 
Buckley  v.  Garrett,  112. 

V.  Railroad  Co.,  456,  532. 
Buckman  v.  Levi,  248,  319. 
Budd  V.  Munroe.  146. 
Buddenburg  v.  Benner.  283. 
Buddy  v.  Railway  Co.,  460. 
Buenemaun  v.  Railway  Co.,  525. 


Buffalo,   P.  &  W.   R.  Oo.  v.  O'Hara, 

531. 
Buffett  V.  Railroad  Co.,  468,  COO,  640. 
Buffon  V.  Merry,  7. 
Buis  V.  Cook,  202-204. 
Bulkley  v,  Naumkeag  &  Cotton  Co., 

304. 
Bullard  v.  Young,  553. 
Bunnell  v.  Davisson.  231. 

V.  Stern.  38.  180. 
Burbank  v.  Chapin.  290. 
Burdlct  V.    Murray,   21,   23,    197,   214, 

224,  232. 
Burgess  v.  Clements,  267,  280,  282,  287. 

V.  Sellgman,  155. 
Burke  v.  Railway  Co.,  492. 

V.  Trevltt,  16,  182. 
Burlington,    C.    R.    &    N.    Ry.    Co.    v. 

Northwestern  Fuel  Co.,  338,  340. 
Burlington  &  M.  R.  R.  Co.  v.  Chicago 

Lumber  Co.,  334. 
Bum  V.  Miller,  219,  221. 
Burnard  v.  Haggis.  17. 
Buruell  v.  Railroad  Co.,  81,  241,  462, 

4G3. 
Burnett  v.  Lynch.  562. 
Bumham  v.  Railroad  Co.,  511,  585. 

V.  Young,  281. 
Burns  v.  Pigot.  295. 

V.  Railroad  Co.,  529. 

V.  Rowland,  141. 
Burroughs   v.   Railroad   Co.,  818,   468, 

471. 
Burrows  v.  Railway  Co.,  527. 

V.  Trieber.  280,  283,  287. 
Bursley  v.  Hamilton,  23. 
Burt  V.  Railway  Co.,  519. 
Burtis  V.  Cook.  142. 

V.  Railroad  Co.,  467. 
Burton  v.  Baughan,  79. 

V.  Curyea,  123,  146,  148. 

V.  Hughes,  59,  90. 

V.  Wilkinson,  30,  34,  35,  7a 
Burton's  Appeal,   145. 
Burwell  v.  Railroad  Co.,  405. 
Busfield  V.  Wheeler.  233. 
Bush  V.  Lathrop,  143. 

V.  Lyon,  129.  134.  160. 

V.  :\Iiller,  92.  246,  303. 

V.  Railroad  Co.,  479. 

V.  Romer,  553. 

V.  Steinman,  205. 
Buskirk  v.  Purinton,  847. 


B76 


OASBS  CIIBD. 


[The  figures  refer  to  pages.] 


Bussey  t.  Transportation  Co.,  313. 
Bussman  v.  Transit  Co.,  640. 
Butler  V.  Basing,  550. 

V.  Heane,  440. 

V.  Hudson  R.  R.  Co.,  385,  387. 

V.  Smith,  546. 

V.  Woolcott,  347. 
Butt  V.  Great  Western  R.  Co.,  30. 
Butterfield  v.  Lathrop,  7. 
Butterworth  v.  Kennedy,  163. 
Button  V.  Railroad  Co.,  527. 
Bxixton  V.  Railway  Co.,  540. 


o 


Cabell  V.  Vaughan,  552. 

Caddo,  The,  544,  546. 

Cadwallader  v.  Grand  Trunk  R.  Co., 

382. 
Cady  V.  McDowell,  261. 
Caffln  V.  Kirwan,  124. 
Cahill  V.  Railroad  Co.,  386,  388. 
Cailiff  y.  Danvers,  204,  239,  240. 
Cairns  v.  Robins,  459. 
Calais  Steamboat  Co.  v.  Scudder,  116. 
Caldwell  v.  Bartlett,  118. 

V.  Express  Co.,  361. 

V.  Hall,  7,  10. 

V.  Steamboat  Co.,  521. 
Caledonia,  The,  409. 
Calhoun  v.  Bank,  172. 

V.  Thompson,  29. 
California  Ins.  Co.  v.  Union  Compress 

Co.,  215. 
Calkins  v.  Lockwood,  134. 
Callanan  v.  Smart,  173. 
Calye's  Case,  257,  260,  282. 
Camblos  v.  Railroad  Co.,  331,  335. 
Camden  &  A.  R.  Co.  v.  Baldauf,  866, 
438. 

V.  Bausch,  531. 

T.  Burke,  342. 

V.  Forsyth,  436,  468,  471. 
Camoys  v.  Scurr,  90,  94. 
Camp  V.  Steamboat  Co.,  415. 
Campbell  v.  Morse,  359. 

V.  Page,  23. 

V.  Parker,  121,  160. 

T.  Phelps,  91. 

V.  Stakes,  83,  88. 
Canadian  Bank  of  Commerce  t.  Mc- 
Crea,  146. 


Candee  v.  Railroad  Co.,  471,  472,  640. 
Canfield   v.    Minneapolis   Agricultural 

&  Mechanical  Ass'n,  165. 
Cannon  v.  Kinney,  21. 
Cantling  v.  Hannibal  &  St.  J.  R.  Co., 

384,  440. 
Cantu  V.  Bennett,  434. 
Cantwell  v.  Express  Co.,  411,  544. 
Capehart  v.  Railroad  Co.,  431. 
Card  V.  Railroad  Co.,  518. 
Carey  v.  Itaiiroad  Co.,  540. 
Cargo  ex  Schiller,  In  re,  183. 
Carle  v.  Bearce,  33,  80. 
Carlisle  v.  Wallace,  8. 
Carms  v.  Nichols,  247. 
Carpenter  v.  Branch,  24,  82,  85,  92. 

V.  Griffin,  9,  82. 

V.  Railroad  Co.,  399,  514. 

V.  Taylor,  259. 
Carpue  v.  Railway  Co.,  311. 
Carr  v.  Railroad  Co.,  331,  372,  414. 

V.  Schafer,  404,  405. 
Carrico  v.  Railway  Co.,  518. 
Carriger  v.  Whittington,  78. 
Carriugton  v.  Fickiin,  62. 

V.  Ward,  129. 
Carroll  v.  Cone,  40. 

V.  Mullanphy,  168. 

V.  Railroad  Co.,  494,  521,  530. 
Carsley  v.  White,  30. 
Carsten  v.  Railroad  Co.,  567. 
Carter  v.  Berlin  Mills  Co.,  200. 

V.  Graves,  544. 

V.  Hobbs,  269,  272,  300. 

V.  Manufacturers'    Nat.    Bank    of 
Lewistown,  117. 

V.  Peck,  469,  473-^75,  540. 

V.  Railway  Co.,  521. 

V.  Roland.  194. 

V.  Wake,  169. 
Carton  v.  Railroad  Co.,  341. 
Cartwright  v.  Railroad  Co.,  409. 

V.  Wilmerding,  116,  122,  123. 
Gary  v.  Hotailing,  60,  88. 
Case  V.  Fogg,  234,  297.      . 
Casey  v.  Cavaroc,  121,  124,  172. 

V.  National  Bank,  121,  124- 

V.  Schuchardt,    124. 
Cashill  V.  Wright,  283,  284. 
Cass  V.  Boston  &  Lowell  R.  Co.,  24. 
240. 

V.  Higenbotam,  129,  160,  164,  176, 
199. 


CASSS   CITED. 


677 


[The  figures  refer  to  papes.] 


Casslday  t.  McKensle,  7S. 

V.  Railroad  Co.,  522. 
Casslus,  The,  451. 
Castanola  v.  Railroad  Co.,  482. 
Castling  v.  Aubert,  232. 
Caswell  V.  Railroad  Corp.,  500. 

V.  Worth,  527. 
Catlln  V.  Adirondack  Co.,  551. 
Caton  V.  Rumney,  313. 
Cawfleld  v.  Railway  Co.,  522. 
Cayuga  County  Nat.  Bank  v.  Daniels, 

146,  148. 
Ceas  V.  Braraley.  121. 
Cecil  V.  Preuch,  250. 
Centlivre  v.  Ryder,  273. 
Central  Line  v.  Lowe,  353,  357. 
Central  R.  Co.  v.  Bryant,  415. 

V.  Gleason,  528. 

V.  Green,  500. 

V.  Van  Horn,  538. 
Central   Railroad   &   Banking   Oo.    v. 
Bayer,  476. 

V.  Georgia     Fruit     &     Vegetable 
Exch.,  472. 

V.  Lampley,  313,  322,  484,  488. 

Central  Trust  Co.  v.  East  Tennessee, 

V.  &  G.  Ry.  Co.,  513. 

V.  New  York  Equipment  Co.,  154. 

V.  Wabash,   St   L.  &  P.   Ry.    Co., 
385,  386. 
Central  Vermont  R.  Co.  v.  Soper,  430. 
Certain  Logs  of  Mahogany,  342,  349. 
Chamberlain  v.  Car  Co.,  400. 

V.  Masterson,  272. 

V.  Railroad  Co.,  494. 

V.  Smith,  9. 

V.  West,  59,  90,  291. 
Chamberlln  v.   Cobb,   45,  82,  85,   180, 

201. 
Champlln  v.  Butler,  219. 
Chandler  v.  Beldon,  232,  348. 
Chapel  V.  Hickes,  220. 
Chapin  v.  Railroad  Co.,  363. 
Chaplin  v.  Rogers,  124. 
Chapman  v.  Allen,  223. 

V.  Brooks,  134. 

V.  Gale,    169. 

V.  Railroad  Co.,  528. 

V.  White,  40. 
Chapman's  Adm'x  v.  Turner,  132. 
Charles  v.  Coker,  113,  163. 

V.  Lasher,  311. 
LAW  BAILM. — 87 


Charles  P.  Chouteau,  The,  472. 
Chase,  The,  308. 
Chase  v.  Corcoran,  39,  52. 
V.  Gates,  33. 
V.  Maberry,  61. 
V.  Washbura,  7,  8,  82,  245. 
V.  Westmore,  231. 
Chattahoochee  Nat.  Bank  v.  Schley,  32, 

48,  79. 
Cheesman  v.  Exall,  100,  479. 
Cheney  v.  Railroad  Co.,  514,  535. 
Chenowith  v.  Dickinson,  24,  236,  239, 

240. 
Cherry  v.  Railroad  Co.,  540. 
Chesapeake  &  O.  R.  Co.  v.  Radbourne, 

469. 
Chesley  v.  St.  Clair,  60. 
Chevallier  v.  Straham,  305,  306. 
Chicago,  B.  &  Q.  R.  Co.  v.  Burlington, 
C.  R.  &  N.  Ry.  Co.,  322. 
V.  Griffin,  512. 
V.  Hale,  557. 
V.  Iowa,  331,  507. 
V.  Landauer,  522,  527. 
V.  Manning,  355. 
V.  Mehlsack,  495. 
Chicago  City  Ry.  Co.  v.  Mumford,  491. 

V.  Pelletier,  515,  533. 
Chicago  Dock  Co.  v.  Foster,  149. 
Chicago,  I.  &  P.  R.  Co.  v.  Witty,  410. 
Chicago,   K.   &  W.   R.  Oo.   v.   Frazer, 

539. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley, 
331. 
V.  Minnesota,  331,  332,  507. 
V.  Wallace,  313. 
Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Lewis, 

518,  522. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Boyce, 
384,  4G2. 
V.  Clayton,  381. 
V.  Collins,  ;J81. 
V.  Conklin,  387. 
V.  Fairclough,  391,  463, 
V.  Harmon,  375. 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels, 
355,  415,  425,  430. 
V.  Moss,  355,  415. 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Hold- 
rige.  513. 
V.   \Volcott,  325,  327,  472. 
Chicago.  St  P.,  M.  &  O.  R.  Co.  v.  Bry- 
ant 498. 


67S 


CASES  GITBD. 


[The  figures  refer  to  oages.] 


Chicago  Taylor  Printing  Press  Co.  v. 

Ix)well,  116. 
Chicago  &  A.  R.  Co.  v.  Addizoat,  462, 
463. 

V.  Arnol,  522,  53& 

V.  Byrum,  518. 

V.  Davis,  404. 

V.  Flagg,  509,  565,  567. 

V.  Gretzner,  527. 

V.  Michie,  495. 

V.  People,  327,  337,  338,  840. 

V.  Pillsbury,  524. 

V.  Scott,  459. 

V.  Simms,  430,  431. 

V.  Thompson,  366. 

V.  Thrapp,  411. 

V.  Wilson,  526. 
Chicago  &  E.  I.  R.  Co.  v.  Katzenbach, 

431. 
Chicago  &  E.  R.  Co.  v.  Flexman,  523, 

524. 
Chicago  &  N.  R.  Co.  v.  Merrill,  451. 

V.  People,  322,  327. 
Chicago  &  N.  W.  R.  Ca  v.  Carroll,  504. 

V.  Chisholm,  567. 

V.  Dey,  341. 

V.  Fillmore,  525. 

V.  Jenliins,  334,  335. 

V.  Northern  Line  Packet  Co.,  469, 
555. 

V.  People,  335,  340,  469. 

V.  Sawyer,  363. 

V.  Waiiams,  506,  507,  514,  567. 
Chicago  &  R.  I.  R.  Co.  v.  Fahey,  541. 

V.  Warren,   447. 
Chickering  v.  Fowler,  449,  452,  456. 

V.  Fullerton,  120. 

V.  Raymond,  60. 
Chllds  V.  C\irp.,  157. 

V.  Hugg,  170. 
Chiles  V.  Garrison,  48,  74,  82. 
Chouteau,  The  Charles  P.,  472. 
Chouteau  v.  Allen,  20,  168,  170. 
Chouteaux  v.  Leech,  360,  402. 
Chrlstenson  v.  Express  Co.,  ,310,  442. 
Christian,  The  Samuel  J.,  552. 
Christie  v.  The  Craighton,  355. 

V.  Griggs,  311,  378,  518,  526. 

V.  Railway  Co.,  337,  340. 
Christy  v.  Smith,  486,  488. 
Chrysler  v.  Renois,  139. 
Churchill  v.  Welsh,  194. 
Oicalla  v.  Rossi,  74. 


Cincinnati,  H.  &  D.  R.  Co.  v.  Pontius, 

470. 

V.  Spratt,  409,  474. 
Cincinnati,  H.  &  I.  R.  Co.  v.   Eaton, 

563. 
Cincinnati  &  C.  A.  L.  R.  Co.  v.  McCool, 
239,  459. 

V.  Marcus,  383. 
Citizens'   Bank   v.   Nantucket   Steam- 
Boat  Co.,  308,  322,  550. 
Citizens'   Nat.   Bank  of   Baltimore  v. 

Hooper,  172. 
City  Bank  v.  Taylor,  158. 
City  Bank  of  New  Haven  v.  Perkins, 

12,  18,  122. 
City    Fire    Ins.    Co.    v.    Olmsted,    121, 

124,  144. 
City   of   Cleveland   v.   State   Bank  of 

Ohio,  143. 
City  of  Lincoln,  The,  456. 
City  of  Terre  Haute  v.  Hudnut,  24. 
Civil  Rishts  Bill,  The,  259,  277. 
Claflin  V.  Meyer,  31,  236,  237,  240-242. 

v.  Railroad  Co.,  477,  478. 
Clapp  V.  Nelson,  84,  96-98. 

V.  Sohmer,  482. 

V.  Stanton,  313. 
Clark  V.  Barnwell,  312. 

V.  Burns,  264,  312,  398,  399. 

V.  Carlton,  22. 

V.  Costello,  121. 

V.  Gaylord,  15,  57. 

V.  Hale,  225. 

V.  Henry,  109. 

V.  Jack,  82. 

V.  Masters,  342. 

V.  Railroad  Co.,  63,  844,  365,  B34, 
552. 

V.  Richards,  552. 

T.  Smith,  219. 

V.  Spence,  29,  241. 

V.  U.  S.,  201. 
Clarke  v.  Earnshaw,  20. 

V.  Gray,  414. 

V.  Needles,  314. 

V.  Poozer,  197. 

V.  Railroad  Co.,  372,  875,  376. 
Clark's  Case,  96. 
Clarkson  v,  Edes,  346,  349. 
Classen  v.  Leopold,  283. 
Clay  V.  Willan,  241. 
Claypool  V.  McAllister,  200,  311. 
Clayton  v.  Hunt,  440. 


CASES   CITED. 


679 


[The  figures  refer  to  papos.J 


Oleghom   v.   Minnesota  Title   Ins.   & 

Trust  Co.,  165. 
Olendanlel  v.  Tuckerman,  334,  450. 
Cleveland,  C,  C.  &  I.  R.  Co.  v.  Closser, 
83(>-339. 
V.  Newell,  526. 
V.  Walrath,  526. 
Cleveland,  C.  &  C.  R.  Co.  v.  Bartram, 

514. 
Cleveland,  P.  &  A.  R.  Go.  v.  Curran, 

519,  530. 
Close  V.  Waterhouse,  222. 
Clotworthy  v.  Railroad  Co.,  539. 
Cloud  V.  Railway  Co.,  318. 
Clute  V.  Wiggins,  267,  272,  280,  285, 

287. 
Clyde  V.  Hubbard,  468,  472. 
Clymer  v.  Patterson,  111. 
Coats  v.  Chaplin,  547. 
Cobb  v.  Abbot,  473,  475. 
v.  Doyle,  137. 
V.  Howard,  517. 
V.  Railroad  Co.,  549. 
V.  Wallace,  187,  209,  252,  253. 
Cochran  v.  Dinsmore,  31,  354. 
Cock  V.  Taylor,  333. 
Cockle  V.  Railway  Co.,  538. 
Cockran  v.  Irlam,  114. 
Coe  V.  Railroad  Co.,  340. 
Coffin  V.  Railroad  Co.,  409. 
Coger  V.  Packet  Co.,  506. 
Coggs  V.  Bernard,  2,  4,  24,  41,  62,  64, 
70,  82,  89,  93,  103,  152,  178,  186,  187, 
191,  205,  238,  240.  251,  259,  305,  351, 
353,  357,  364. 
Cogswell  V.  Railway  Co.,  522. 
Cohen  v.  Express  Co.,  469. 

V.  Frost,  356,  394. 
Colt  V.  Humbert,  142. 
Cole  V.  Goodwin,  309,  312,  366,   377, 
421,  438,  445. 
V.  Northwestern  Bank,  116. 
V.  Telegraph  Co.,  429. 
Coleman  v.  Banking  Co.,  539. 
V.  Frazier,  488. 
V.  Lambert,  333,  546. 
V.  Livingston,  31,  241. 
v.  Riches,  317. 
V.  Shelton,  150. 
Coles  V.  Clark,  29,  32. 

V.  Railroad  Co.,  551,  552. 
Colket  V,  Ellis,  165. 
CoUard  v.  Railway  Co.,  558. 


Collenberg,  The,  332,  869. 
Collondor  v.  Dinsmore,  472. 
Collett  V.  Railway  Co.,  494. 
Collier  V.  Poe,  82. 

V.  Valentine,  360,  361. 
Collins'  Appeal,  119,  121. 
V.  Bennett,  31,  89,  20L 
V.  Buck,  122,   124,  17L 
V.  Burns,  32,  243. 
V.  Hutchins,  193. 
V.  Railroad  Co.,  379,  391,  469. 
V.    Woodruff,  210,  211. 
CoUman  v.  Collins,  344,  347. 
Colonel  Ledyard,  The,  367,  405. 
Colt  V.  Mc.Mechen,  351,  357,  363. 
Colton  V.  Railroad  Co.,  354. 
Columbus  &  I.  C.  Ry.  Co.  v.  Arnold, 
496. 
V.  Farrell,  588. 
Columbus  &  W.  Ry.  Co.  v.  Kennedy, 
352. 
V.  Ludden,  456,  458. 
Colwell  V.  Railroad  Co.,  553. 
Colyar  v.  Thaylor,  57,  62. 
Combe  v.  Railroad  Co.,  405. 
Combes  v.  Chandler,  143. 
Combination  Trust  Co.   v.   Weed,  20, 

110. 
Combs  V.  Tuchelt,  122. 
Comer  v.  Cunningham,  147. 
Commercial  Bank  v.  Hughes,  40. 

V.  Martin,  155,  156. 
Commercial  Bank  of  Buffalo  v.  Kort- 

right,  127. 
Commonwealth  v.  Hagan,  269. 

V.  Hide  &  Leather  Ins.  Co.,  412. 
v.  Mitchel,  276,  297. 
v.  Moore,  269. 
V.  Morse,  13. 
V.  Power,  276,  503,  505. 
V.  Vermont  &  M.  R.  Co.,  494,  497. 
V.  Weatherbee,  257. 
Comp   V.  Bank,  45. 
Compta,  The,  557. 
Compton  V.  Jones,  173. 

V.  Shaw,  349. 
Comstock  V.  Hier,  138. 
Oonard  v.  Insurance  Co.,  108,  111,  334- 
Conc-ord  &  P.  R.  Co.  v.  Forsaith,  338, 

340. 
Condict  v.  Railway  Co.,  325,  362,  363, 

468,  470. 
Condon  v.  Railroad  Co.,  465,  466. 


580 


OASES   CITBD. 


[The  figures  refer  to  pa?:es.] 


Coodran  v.  Railway  Co.,  495. 
Cougar  V.  Railway  Co.,  367,  478,  546. 
Conger  v.  City  of  New  Orleans,  172. 

V.  Railroad  Co.,  369,  375,  410. 
Conkey  v.  Railroad  Go.,  465. 
Conljllng  V.  Vail,  187. 
Connecticut    Mut.    Ins.    Co.    v.    New 

York,  &  N.  H.  R.  Co.,  560. 
Conner  v.  Winton,  41,  61,  68,  69,  235. 
Connolly  v.  Warren,  379,  381,  383. 
Continental  Nat.  Bank  v.  Townsend, 

140,  141. 
Contra   Costa   Coal   Mines   R.   Co.    v. 

Moss,  311. 
Converse  v.   Transportation  Co.,   319, 

320,  466-468,  475. 
Conway  v.  Railroad  Co.,  522. 
Conway  Bank  v.  American  Exp.  Co., 

28,  67,  68. 
Conwell  V.  Voorhees,  488. 
Conyngham's  Appeal,  120,  132,  169. 
Cook  V.  Gourdin,  359. 

V.  Holt,  30,  34,  35. 

V.  Kane,  293,  294. 

V.  Loomis,  194. 

V.  Railroad  Co.,  337,  340. 
Cooke  V.  Ludlow,  547. 

V.  Munstone,  218. 

V.  Railroad  Co.,  404. 
Cooley  V.  Railway  Co.,  343. 
Coombs  V.  Railway  Co.,  547,  548. 
Cooper,  Ex  parte,  481. 

V.  Barton,  30,  209. 

V.  Railway  Co.,  508. 

V.  Ray,  129,  160,  172. 

V.  Simpson,  155,  162,  173. 

V.  Willomatt,  97,  187. 
Cope  V.  Cordova,  449. 
Copcland  v.  Insurance  Co.,  74. 
Copis  V.  Middleton,  174. 
Corbett  v.  Underwood,  121. 
Oorfleld  v.  Corj-ell,  22. 
Cork  Distilleries  Co.  v.  Great  South- 
em  &  W.  Ry.  Co.,  547. 
Cornell  v.  Dakin,  40. 
Cornick  v.  Richards,  127. 
Cornwall  v.  Gould,  163. 
Cortelyou  v.  lousing,  107,  121,  132. 
Cory  v.  Little,  13,  14,  39. 
Coryton  v.  Lithebye,  553. 
Coskery  v.  Nagle,  288. 
Costelo  V.  Crowell,  142. 
Cothran  v.  Moore,  30. 


Coup  V.  Railway  Co.,  313. 
Coupe  Co.  V.  Maddick,  20a 
Coupland  v.  Railroad  Co.,  404. 
Coupledike  v.  Coupledike,  11. 
Cousins  V.  Paddon,  219. 
Covington  v.  Newberger,  294. 
Covington  Stock-Yards  Co.   v.   Keith, 

340,  404. 
Coward  v.  Railroad  Co.,  379,  382,  416,. 

425. 
Cowden  v.  Steamship  Co.,  336. 
Cowdrey  v.  Vandenburgh,  120,  143. 
Cowles  V.  Pointer,  236,  239. 
Cowper  V.  Andrews,  222. 
Cox  V.  Foscue,  361. 

V.  McGuire,  116. 

V.  O'Riley,  31,  241. 

V.  Pattei-son,  303. 

V.  RaUroad  Co.,  406. 

V.  Reynolds,  182. 
Coxon  V.  Railway  Co.,  469. 
Coykendall  v.  Eaton,  99,  270. 
Cragin  v.  Raih-oad  Co.,  369,  875,  877„ 

403,  421,  434. 
Craig  v.  Childress,  307,  359. 
Grain  v.  Paine,  125,  126. 
Craker  v.  Railway  Co.,  523. 
Crawford  v.  Clark,  454,  455. 

V.  Raih-oad  Co.,  468,  50& 
Crawshay  v.  Eades,  481. 

V.  Homfray,  232,  349. 
Craycroft  v.  Railroad  Co.,  415w 
Crease  v.  Babcock,  154. 
Cresson  v.  Railroad  Co.,  508, 
Crocker  v.  Crocker,  145. 

V.  Gullifer,  187,  191. 

V.  Monrose,  163. 

V.  Railroad  Co.,  509. 
Croft  V.  Alison,  196. 

V.  Railroad  Co.,  541. 
Crofts  V.  Waterhouse,  517,  518. 
Cromnielin  v.  Railroad,  347. 
Cromwell  v.  Stephens,  254,  261,  262. 
Cronkite  v.  Wells,  316,  318,  323. 
Croom  V.  Railway  Co.,  523. 
Crosby  v.  Delaware  &  H.  Canal  Co.,  7. 

V.   Fitch,  312,  360,  410. 

V.  German,  84,  86. 

V.  Railroad  Co.,  511. 

V.  Roub,  136. 
Cross  V.  Brown,  16,  80,  31,  182,  1&% 
202,  241. 


CASBS  CITED 


581 


[The  figures  refer  to  pages.] 


Gross  V.  Eureka  L.  &  Y.  Canal  CJo., 

132.  173. 

V.  Railway  Co.,  510. 

V.  WUklus,  261. 
Crossan  v.  Railroad  Co.,  846. 
Crouch  V.  Railroad  Co.,  812,  825,  556. 
Crump  V.Mitchell,  7G,  93,  97. 
Crystal   Palace,   The,    v.    Vanderpool. 

399. 
Cuba,  The,  332. 
Cullen  V.  Lord,  27,  29,  84,  89,  93,  179, 

186,  191. 
Cumberland  Val.  R.  Co.  v,  Myers,  495. 
Cumberland  Val.  R.  Co.'s  Appeal,  335. 
Cuming  v.  Brown,  482. 
Cumins  v.  Wood,  241. 
Cummings  v.  Gaun,  52. 
Cumnock  v.  Institution  for  Savings  In 

Newburyport,  175. 
Curtis  V.  Leavitt,  134. 

V.  Mohr,  135,  136. 

V.  Murphy,  266-269,  272. 

V.  Railroad  Co.,  390,  434,  508,  521, 
527. 
Cushman  v.  Hayes,  12,  164. 
Cutler  V.  Bonney,  278-280. 

V.  Close,  218,  220. 
Cutter  V.  Powell,  218. 
Cutting  V.  Marlor,  155. 

V.  Railway  Co..  558. 
Outts  V.  Bralnerd,  472. 


D 


Daggett  V.  Shaw,  351. 
Dakin  v.  Oxley,  832,  333. 
Dale  V.  Brinckerhoff,  29,  57,  5a 

V.  Hall,  551. 

V.  Lee,  213. 
Dallam  v.  Fitler,  21. 
Dalyell  v.  Tyrer,  494. 
Damon  v.  Waldteufel,  155. 
Dan,  The,  305. 
Dana  v.  Railroad  Co.,  465. 
Dando  v.  Foulds,  6. 
Danforth  v.  Denny,  123. 

V.  Grant,  485,  486. 
Daniel  v.  Railway  Co.,  527. 
Dansey  v.  Richardson,  208,  257,  261. 
Dargan  v.  Pullman  Palace-Car  Co.,  262. 
Darling  v.  Railroad  Corp.,  468. 
Darlington  v.  Chamberliu,  232. 


Darst  V.  Bates,  163. 
Dart  V.  Ix)we,  45,  46. 
Dartnell  v.  Howard,  63. 
Dash  v.  Van  Kieeck,  189. 
Daublgny  v.  Duval,  114. 
Davenport  v.  Ledger,  194. 

V.  Tarlton,  158. 
Davenport  Nat.  Bank  v.  Uomeyer,  I4fl. 
Davey  v.  Chamberlain.  204. 

V.  Mason,  317. 
Davidson  v.  Graham,  434. 

V.  Gwynue.  406. 
Davies,  Ex  parte,  34. 
Davis,  The,  344. 

V.  Bank  of  England,  144. 

V.  Biglor,  233. 

V.  Funk,  167. 

V.  Garrett,  93,  360,  361,  365. 

V.  Gay,  61,  259. 

V.  Jacksonville  Southeastern  Line, 
409,  544. 

V.  James,  544. 

V.  Pattison,  383. 

T.  Railroad  Co.,  352,  354,  359,  862, 
381-383,  441,  504,  526. 

V.  Stevens,  154. 
Davison  v.  City  Bank,  333,  334. 
Dawes  v.  Peck,  544-547. 
Dawson  v.  Chamuey,  279,  281. 

V,  Railroad  Co.,  403,  430,  431- 
Day  V.  Brownrigg,  54. 

V.  Owen,  502.  504,  505,  514. 

V.  Ridley,  359. 

V.  Saunders,  139. 

V.  Swift.  107,  172. 
Daylight  Burner  Co.  v.  Odlln,  478. 
Dayton  Nat.  Bank  v.  Merchants'  Nat. 

Bank,  110,  171. 
Dean  v.  Keate,  202. 

V.  Lawliam,  158. 

V.  Railroad  Co..  528. 

V.  Vaccaro,  455,  456L 
Dearborn  v.  Bank,  47. 
Doarle  v.  Hall,  125. 
Decan  v.  Shipper,  546. 
De  Fonclear  v.  Shottenklrk,  92. 
De  Forest  v.  Fulton  Fire  Ins.  Co.,  252. 
De  Grau  v.  Wilson,  454. 
De  Haven  v.  Kensington,  47. 
Delaware,  The,  312,  437. 
Delaware  Bank  v.  Smith,  57,  67,  96. 
Delaware,  L.  &  W.  R.  Co.  v.  Central 
Stockyard  Co.,  244. 


582 


CASES  CITED. 


[The  figures  refer  to  pages.] 


De  Lisle  v.  Prlestman,  164. 
Del  Valle  v.  The  Richmond,  39a 
Demanday  v.  Metcalf,  112. 
Deming  v.  Railroad  Co.,  411,  466,  558. 
De  Mott  V.  Laraway,  244,  311,  447. 
Dennison  v.  The  Wataga,  517. 
Denny  v.  Lyon,  145,  171. 

V.  Railroad  Co.,  360-362. 
Denton  v.  Chicago,  R.  I.  &  P.  R.  Co., 

241. 
Denver,  S.  P.  &  P.  R.  Co.  v.  Frame, 

549. 
Denver  Tramway  Co.  v.  Reed,  533. 

V.  Reid,  519. 
Denver  &  N.  O.  R.  Co.  v.  Atchison,  T. 

&  S.  F.  R.  Co.,  340. 
Denver  &  R.  G.  R.  Ca  v.  Hill,  345. 
Depuy  V.  Clark,  158. 
Derosia  v.  Railroad  Co.,  456,  458. 
Derrick  v.  Baker,  75. 
Derwort  v.  Loomer,  521, 
Dessauer  v.  Baker.  2S2. 
De  Tollenere  v.  Fuller,  89,  92,  187. 
Detroit  &  B.  C.  Ry.  Co.  v.  McKenzle, 

468,  470. 
Devalcourt  v.  Dillon,  51. 
Devato   v.  823   Barrels  of  Plumbago, 

452,  453. 
Devereux  v.  Barclay.  99,  209,  243. 
De  Vinne  v.  Rianhai'd,  223. 
Dewell  v.  Moxon.  349. 
Dewey  v.  Bowman,  11,  107,  120. 
De  Wolf  V.  Gardner,  146,  147. 
D'Wolf  V.  Harris,  111. 
Dexter  v.  Railroad  Co.,  380,  381,  383, 

890. 
Dibble  v.  Brown,  310,  379,  381,  383,  384. 
Dice  V.  T^cks  Co.,  525. 

V.  Transportation  Co.,  532. 
Dickenson  v.  Winchester,  288,  299. 
Dickerman  v.  Depot  Co.,  508. 
Diekerson  v.  Rogers.  264,  266,  282. 
Dickon  v.  Clifton,  553. 
Dickson  V.  Railroad  Co.,  323,  429. 
Dietrich  v.  Railroad  Co.,  514. 
Dill  V.  Railroad  Co.,  381. 
Dillard  v.  Railroad  Co.,  432. 
Dillenback  v.  Jerome,  12,  13,  59. 
Diller  v.  Brubaker,  167,  168. 
Dlmmick  v.  Milwaukee  &  St.  P.  Ry. 

Co.,  239. 
Dlmmltt  v.  Railroad  Co.,  470. 
Dininny  v.  Railroad  Co.,  463. 


DInsmore  v.  Railroad  Co.,  325, 
Dlsbrow  V.  Tenbroeck,  19L 
Dltson  V.  Randall,  149. 
Dix  V.  Cobb,  125. 

V.  Tully,  135. 
Dixon  V.  Dixon,  137,  189. 

V.  Dunham,  452,  455. 

V.  Richelieu  Nav.  Co.,  387. 

V.  Yates,  479. 
Doak  V.  Bank,  105. 
Doane  v.  Russell,  104,  105,  233,  234. 
Dobleckl  v.  Sharp,  526. 
Dodge  v.  Meyer,  34. 

V.  Steamship  Co.,  500,  532, 
Doe  V.  Laming,  257,  260. 
Dole  V.  Merchants'  Mutual  Marine  Ins. 
Co.,  365, 

V.  Olmstead,  8,  246. 
Domestic  Sewing  Mach.   Co.  v,  Wal- 
ters, 294,  295, 
Domett  V.  Beckford,  334. 
Donaldson  v.  McDowell,  347. 
Donath  v.  Broomhead,  482. 
Donohoe  v.  Gamble,  165. 
Donovan  v.  Railway  Co.,. 500, 
Doolittle  V,  Shaw,  194. 
Doorman  v.  Jenkins,  27,  62,  64,  92. 
Dorr  V.  Navigation  Co.,  418,  421,  438 
Doss  V.  Railroad  Co.,  528. 
Doty  V,  Strong,  305,  308. 
Doud  V.  Reld,  158. 
Dougal  V.  Kemble,  334. 
Dougherty  v,  Posegate,  13,  89,  43,  61, 

68. 
Douglas  V.  Railway  Co.,  518. 
Douglass  V.  Railroad  Co.,  408. 
Dow  V.  Beidelman,  331,  507, 
Dowd  V.  Railway  Co.,  528. 
Dowler  v.  Cushwa,  130,  171. 
Down  V.  Fromont,  415, 
Dows  V,  Cobb,  543, 

V.  Greene,  546. 

V.  Kidder,  147, 

V.  National  Exch.  Bank,  123,  148, 
148. 

V.  Perrln,  546. 
Doyle  V,  Klser,  382,  383. 

V.  Railroad  Co.,  496. 
Drake  v.  Cloonan,  150. 

V.  Redington,  197. 

V.  Short,  08. 

V.  White,  128. 


CASES  CITBD. 

[The  flgurea  refer  to  paffes.] 


688 


Draper  r.  Delaware  &  EL  Canal  Go., 

241. 

V.  Saxton,  136. 
Dresbach  v.  Railroad  Co.,  459. 
Dresser  v.  Bosanquet,  222. 
Drew,  The,  479. 

V.  Bira,  333. 

V.  Railroad  Co.,  514. 
D.  R.  Martin,  The,  503-505. 
Drummoud  v.  Railroad  Co.,  513. 
Dryden  v.  Railroad  Co.,  513. 
Dubois  V.  Delaware  &  H.  Canal  Co., 

218-221. 
Ducker  v.  Bamett,  239,  244. 
Dudley  v.  Smith,  587. 
Duell  V.  Cudlipp,  117,  130,  132,  130. 
Dull  V.  Budd,  448,  450,  478. 

V.  Railroad  Co.,  496. 
Duffield  V.  Miller,  166. 
Duffy  V.  Thompson,  381. 
Dufolt  V.  Gorman,  344. 
Dufour  V.  Mepham,  29,  32. 

V.  Railroad  Co.,  529. 
Du  Laurans  v.  Railroad  Co.,  609,  514. 
Dunbar  v.  Railroad  Co.,  479. 
Dunbler  v.  Day,  279,  280,  282. 
Duncan  v.  Blundell,  220,  23a 

V.  Jaudon,  146. 

V.  Magette,  80. 

V.  Spear,  90. 
Duncomb  v.  New  York,   H.  &  N.  R. 

Co.,  20,  110,  134,  136. 
Dunham  v.  Pettee,  232. 
Dunlap  V.  Gleason,  3,  253. 

V.  Hunting,  80. 

V.  Steamboat  Co.,  383,  389,  890,  428. 
Dunlop  V.  Lambert,  544,  548. 

V.  Munroe,  313,  485,  487. 
Dunn  V.  Branner.  61. 

V.  Railroad  Co.,  403,  492,  493,  518, 
520,  527. 

V.  Snell,  125. 

V.  Steam-Boat  Co.,  894. 
Dunseth  v.  Wade,  407. 
Dunson  v.  Railroad  Co.,  362. 
Duntley  v.  Railroad  Co.,  429. 
Dupre  V.  Fall,  131. 
Durant  v.  Einstein,  169. 
Durfee  v.  Jones,  58. 
Durgin  V.  Express  Co.,  427. 
Durgy     Cement     &     Umber     Oo.     v. 

O'Brien,  480. 
Dustin  V.  Hodgen,  39. 


Dutton  V.  Solomonson,  547. 
Duveuick  V.  Railroad  Co.,  408,  432. 
Dwlght    V.    Brewster,    304,    806,    828, 

653. 
Dyer  v.  Pearson,  116. 

V.  Railroad  Co.,  204,  849,  B46. 
Dyke  v.  Railway  Co.,  484. 
Dykers  v.  Allen,  160. 


E 


Eagle  V.  White,  448,  449. 

Earnest  v.  Express  Co.,  368. 

East  V.  Ferguson,  231. 

Eastern  R.  Co.  v.  Relief  Ins.  Co.,  412. 

East  India  Co.  v.  Pullen,  249,  356. 

East  Line  &  R.   R.   Ry.   Co.  v.  Hall, 

546. 
Eastman  v.  Avery,  107. 

V.  Patterson,  94,  250. 

V.  Sanborn,  93,  202,  204. 
Easton   v.   Dudley,   318. 
East  St  Louis  C.  Ry.  Co.  v.  Wabash, 

St.   L.  &  P.  Ry.  Co.,  461. 
East  Tennessee,   V.   «&   G.   R.   Co.   t. 
Hunt,  347,  461. 

V.  Johnston,  367,  415. 

V.  Lock  hart,  537. 
East  Tennessee  &  G.  R.  Co.  v.  Mont- 
gomery, 472. 

V.  Nelson,  409,  469,  546. 

V.  Whittle,  312. 
East  Tennessee  »&  V.  R.  Co.  v.  Rogem, 

409,  472,  473. 
Eaton  V.  Eaton,  16. 

V.  Hill,  83. 

V.  Lynde,  196,  214,  224. 

V.  Railroad  Co.,  491,  492,  49a 
Eby  V.  Hoopes,  109. 
Eckert  v.  Railroad  Co.,  627. 
EcliDse  Towtoat  Co.  v.  Pontchartraln 

R.  Co.,  336. 
Eddy.  The,  348,  349,  453. 

V.  Han-is,  517,  565. 

V.  Livingston,  41.  57,  63,  68,  71. 
Edmunds  v.  Transportation  Co.,  479. 
Edsall  V.  Railroad  Co.,  433. 
Edson  V.  Weston,  30,  40,  61,  79,  lOa 
Edwards  v.  Carr,  202,  204. 

V.  Martin,  120. 

V.  Railway   Co..   513,  523. 

V.  Sherratt,  326. 


684 


OASES  CITED. 


IThe  figures  refer  to  pages.] 


Edwards  r.  Todd,  840. 

V.  Transit  Co.,  368. 
Edward's  Appeal,  6. 
B.  F.  Hallack  Lumber  Manuf'g  Co.  v. 

Gray,  160,  166. 
Efron  V.  Car  Co.,  400, 
B.  H.  Flttler,  The,  452,  453. 
K.  H.  Pray,  The,  480. 
Ehrler  v.  Worthen,  158. 
Ehrllck  V.  Bwald,  163. 
Eichelberger  v.  Murdock,  111,  163. 
Ela  V.  Express  Co.,  478. 
Elcox  V.  Hill,  283. 
Eldrldge  v.  Adams,  197. 
Elklns  V.  Railroad  Co.,  354,  490,  547, 

549,  550. 
Ellet  V.  Railway  Co.,  526. 
Elliot  V.  Abbot,  19. 
EUiott  V.  Martin,  295. 

V.  Railroad  Co.,  474,  512. 

V.  Rossell,  312,  359,  550. 
Ellis  V.  Hamlen,  218,  219. 
Elmore  v.  Railroad  Co.,  467,  468. 

V.  Sands,  510,  511. 
Elsee  V.  Gatward,  55,  84,  86,  183, 
Elsworth  V.  Tartt,  473,  475,  541. 
Elvira  Harbeck,  The,  390. 
Elwell  V.  Skiddy,  333. 
Ely  V.  Railway  Ca,  526. 

V.  Steamboat  Co.,  455. 
Elyton  Land  Co.  v.  Mingea,  528. 
Emerick  v.  Chesrown,  75. 
Emerson  v.  Fisk,  29. 
Emery  v.  Bank,  147. 

V.  Hersey,  323. 

V.  Irving  Nat.  Bank,  148. 
Emily,  The,  556. 
Empire  City  Bank,  In  re,  154. 
Empire  Transp.  Co.  v.  Wallace,  408, 
410. 

V.  Wamsutta  Oil  Refining  &  Min- 
ing Co.,  405. 
England  v.  Railroad  Co.,  53a 
English  V.  Canal  Co.,  536. 
Enlow  V.  Klein,  6. 
Erie  Bank  v.  Smith,  155. 
Erie  Dispatch  v.  Johnson,  553. 
Erie  R.  Co.  v.  Wilcox,  367,  415,  421, 

435,  4G9. 
Erie  &  Pacific  Despatch  v.  Cecil,  337. 
Erwln  V.  Arthur,  21,  209. 
Esmay  v.  Fanning,  93,  97-99. 
Esposlto  V.  Bowden,  365. 


Estill  V.  Railroad  Co.,  877. 
Etter  V.  Edwards,  52. 
European  &  Australian  Royal  Mall  Oo. 
V.  Royal  Mail  Steam  Packet  Co.,  100, 
209. 
Evans  v.  Kymer,  138. 

V.  Marlett,   546. 

v.  Mason,  192. 

V.  Nichol,  214. 

V.  Railroad  Co.,  369,  375-377,  513. 

V.  Trueman,  116. 
Evansville  &  C.  R.  Oo.  v.  Duncan,  504. 

V.  Hiatt,  527. 
Evansville  &  I.  R.  Co.  v.  Gilmore,  536. 
Evansville  &  R.  R.  Co.  v.  Barnes,  490. 
Evansville  &  T,  H.  R.  Ca  v.  Erwin,  146. 

V.  Keith,  319. 
Everett  v.  Coffin,  349. 

V.  Railway  Co.,  510. 

V.  Saltus,  233,  349,  546. 

V.  Southern  Exp.  Co.,  366. 

V.  U.  S.,  19. 
Evershed  v.  Railway  Co.,  814,  341, 
Ewai-t  V.  Kerr,  349. 

V.  Stark,  267,  272. 

V.  Street.  357,  358. 
Ewing  V.  Blount,  194. 

V.  French,  7. 
Exchange  Bank  v.  Butner,  135. 

V.  McLoon,  22. 
Exchange  Fire  Ins.  Co.   v.  Delaware 

&  H.  Canal  Co.,  314. 
Express  Co.  v.  Kouutze,  359,  365,  407. 


P 


Fagan  t.  Thompson,  154. 

Fairbanks  v.  Merchants'  Nat  Bank  of 

Chicago,  153. 
Fairfax  v.  New  York  Cent  &  H.  R. 

R.  Co.,  31,  241,  463. 
Fairmount  &  A.  S.  P.  Ry.  Co.  v.  Stut- 

ler,  538. 
Faison  v.  Railway  Co.,  476, 
Faith  v.  East  India  Co.,  347. 
Falk  V.  Fletcher,  162. 
Falkenburg  v.  Clark,  347. 
FaJvey  v.  Railroad  Co.,  469. 
Farkas    v.    Powell,    192. 
Farmer,  The,  v.  McCraw,  549. 
Farmers'  &  Mechanics'  Bank  v.  Oham- 

plain  Transp.  Co.,  438,  446,  448,  455. 


CASES  CITED. 


685 


[The  figures  refer  to  pa  pes.] 


Farmers'  &  Mechanics'  Nat,  Bank  v. 

Logan,  146,  147. 
Famham  v.  Camden  &  A.  R.  Co.,  81, 

854. 
Famsworth  v.  Garrard,  218,  220,  238. 
Farn  worth  v.  Pack  wood,  200,  268. 
Farrant  v.  Barnes,  326. 

V.  Thompson,  10,  29. 
Farrar  v.  Oilman,  19. 
Farrell  v.  Railroad  Co.,  347. 
Farrington  v.  Frankfort  Bank,  188. 

V.  Meek,  222. 
Fan-ow  v.  Bragg,  82, 
Farwell  v.  Importers'  &  Traders'  Nat. 

Bank,  136. 
Faueett  v.  NichoUs,  280. 
Faulkner  v.  Brown,  90,  91. 

V.  Hart,  312,  435,  45V,  55?- 

V.  Railroad  Co.,  325 

V.  Wright,  863. 
Faxon  v.  Mansfield,  218    2ia 
Fay  V.  Burditt,  16. 
Feeter  r.  Heath.  220. 
Feiber  v.  Telegraph  Cc.  451 
Feige  v.  Railroad  Co.,  415,  442..  456. 
Feinberg  v.  Railroad  Co.,  368. 
Feital  v.  Railroad  Co.,  526. 
FeU  T.  Knight,  275,  277. 

V.  Railroad  Co.,  536. 
Fellowes  v.  Gordor    51,  5^- 
Felt  V.  Heye,  145. 
Feltman  v.  Gulf  Brewery,  182. 
I-'e?':on  v.  Brooks,  152. 

V.  Railroad  Co..  524 
Fenn  v.  Blttleston,  19R. 
Fennell  v.  McGowan,  120 
Fenner  7.  Railroad  Co.,  449,  457,  467 
F«^rguson  v.  I^autersteic    9. 

V.  Porter,  51,  55. 

V.  Railroad  Co.,  534. 

V.  Union  Furnace  Co.,  134. 
Ferry  v.  Railroad  Co.,  538. 
Fetrow  v.  Wiseman,  16. 
Fetterton  v.  Roope,  157. 
Fibel  V.  Livingston,  488. 
Fick  V,  Railway  Co.,  523, 
Field  V.  Brackett,  203. 
Fielding  v.  Kymer,  114. 
Fieldings  v.  Mills,  232. 
Flfield  V.  Insurance  Co.,  ."^GS. 
Filer  v.  Railroad  Co.,  527. 
Files  V.  Railroad  Co.,  4!)7. 
Finn  v.  Railroad  Co.,  367,  538,  545. 


Finney  v.  Fairhaven  Ins.  Co.,  216. 
Finucane  v.  Small,  27,  30,  67,  241. 
Fire   Ins.    Ass'u   of   England   v.    Mer- 
chants' &  Miners'  Transp.  Co.,  216. 
First  Nat.  Bank  v.  Bates,  123. 

V.  Bayley,  147. 

V.  Bininger,  33. 

V.  Boyce,  115,  149. 

V.  Crocker,  127,  146,  147. 

V.  Dearborn,  127,  148. 

V.  Dunbar,  75. 

V.  Fowler,  130. 

V.  Graham,  19,  31,  40,  47.  48,  57. 
G3,  64,  66.  69. 

V.  Kelly,  108.  120.  123,  146,  147. 

V.  Mann,  158. 

V.  Marietta  &  C.  R.  Co..  393. 

V.  Nelson.  114.  172. 

V.  Northern  R.  Co..  146. 

V.  Ocean  Nat.  Bank,  15,  24,  40,  48, 
49,  61,  396. 

V.  Pettit.  131. 

V.  Railroad  Co.,  392: 

V.  Rex,  47,  49. 

V.  Shaw.  116,  4.34. 

V.  Strauss,  141. 
Fish  V.  Chapman.  305,  308,  851,  863, 
357.  434.  445. 

V.  Clark,  305,  307,  311. 

V.  Ferris.  191. 

V.  Skut.  60. 
Fishbacli  v.  Van  Dusen.  8,  246i. 
Fishbourne  v.  Railway  Co.,  342. 
Fisher  v.  Brown,  120,  146. 

V.  Clisbee,  311. 

V.  Fisher,  113,  136.  137,  142. 

V.  Kelsey,  287.  300. 

V.  Kyle,  2<),  187.  191. 

T.  Railroad  Co.,  523. 

V.  Sellgman,  155. 
FIsk  V.  Newton.  361,  448-45L 
Fitch  V.  easier,  268.  269,  274. 

V.  Newberry,  326,  327,  344. 
Fitchburg  R.  Co.  v.  Gage,  335-337. 
Fltchburg  &  W.  R.  Co.  v.  Hanna,  815. 
FltUer,  The  E.  H..  452,  453. 
Fitx,  Ex  parte,  109,  172. 
Fitzgerald  v.  Blocher,  1G9,  170. 

V.  Burrill.  480. 

V.  Grand  Trunk  R.  Co.,  336. 

V.  Railroad  Co..  567. 
Fitzpatrick  v.  Railroad  Co..  490. 
Fleming  v.  Railroad  Co.,  496. 


686 


CASES  CITED. 


[The  figures  refer  ^c  pages.] 


Fletcher  r.  Dickinson,  165,  166. 

V.  Howard,  108,  121,  129,  171,  172. 
Flewellin  v.  Rave,  91,  197. 
Flinn  V.  Railroad  Co.,  416. 
Flint  V.  Railroad  Co.,  503. 

V.  Transportation  Co.,  525. 
Flint  &  P.  M.  Ry.  Co.  v.  Weir,  309,  378. 
Flowers  v.  Sproule,  132. 
Floyd  V.  Bovard,  479. 
Fluker  v.  Railroad  Co.,  515. 
Foltz  V.  Stevens,  22,  34. 
Fonseca  v.  Steamship  Co.,  434,  443, 
Foote  V.  Brown,  157. 

V.  Storrs,  30,  239. 
Forbes  v.  Boston  &  L.  R.  Co.,  146,  147. 
Ford  V.  Mitchell,  316,  318,  319. 

V.  Parker,  488. 

V.  Williams,  547. 
Fordyce  v.  Dillingham,  537. 
Forester  v.  Banking  Co.,  476. 
Forsythe  v.  Walker,  32,  302. 
Forth  V.  Simpson,  223,  224. 
Ft  Scott,  W.  &  W.  Ry.  Co.  v.  Sparks, 

514. 
Fortune  v.  Harris,  92-94,  202. 
Ft.  Worth  &  D.  C.  R.  Co.  v.  Daggett, 
403. 

V.  Fuller,  474. 

V.  Williams,  473,  474. 
Forward  v.  Pittard,  305,  351,  352,  854, 

357,  362,  363,  365. 
Fosdick  V.  Greene,  9. 
Foss  V.  Railway  Co.,  529. 
Foster  v.  Bank,  19,  29,  40,  43,  47-49, 
61,  &i,  72. 

V.  Blackstone,  125. 

V.  Frampton,  481. 

V.  Metts,  488. 

V.  Pettibone,  3,  7,  8. 
Fouldes  V.  Willoughby,  189. 
Foulkes  V.  Railway  Co.,  494. 
Fourth  Nat  Bank  v.  St  Louis  Cotton 

Compress  Co.,  149. 
Fowle  V.  W^ard,  160,  16L 
Fowler  v.  Dorlon,  282. 

V.  Ix)ck.  23. 

V.  Steam  Co.,  4i:s. 
Fowles  V.  Railway  Co.,  470. 
Fox  V.  McGregor,  295,  297,  350. 

V.  Pruden,  98. 

V.  Railroad  Co.,  408,  411. 


Fraker  v.  Reeve,  109. 
Fralofif  V.  Railroad  Co.,  379. 
France  r.  Gaudet,  69. 
Franchot  v.  Leash,  99. 
Francis  v.  Castleman,  237. 

V.  Railroad  Co.,  236,  459. 

V.  Shrader,  45,  82,  180,  203. 

V.  Transfer  Co.,  565. 
Francisco  v.  Railroad  Co.,  522. 
Frank  v.  Hoey,  546. 

V.  Railway  Co.,  458. 
Franklin  v.  Neate,  129,  131. 
Franklin  Bank  v.  Commercial  Bank, 

110. 
Franklin  Sav.  Inst.  v.  Preetorlus,  164. 
Frans  v.  Young,  113. 
Fraser  v.  City  Council  of  Charleston, 

145. 
Frederick   v.   Railroad   Co.,   511,   512, 

566. 
Freeman  v.  Birch,  549. 

V.  Boland.  191. 

V.  Newton,  319. 

V.  Railroad  Co.,  334. 

V.  Rankins,  21. 
Freeman,  The,  v.  Buckingham,  487. 
Freiburg  v.  Dreyfus,  123. 
Freidenhich  v.  liailroad  Co.,  513. 
French  v.  Buffalo,  etc.,  R.  Co.,  422. 

V.  Reed,  54,  57. 

V.  Transportation  Co.,  368. 
Fridley  v.  Bowen,  112. 
Friedlander  v.  Railroad  Co.,  437. 
Friend  v.  Woods,  364. 
Frink  v.  Coe,  311,  521. 

V.  Potter,  521. 
Fromont  v.  Coupland,  473. 
Frost  V.  Plumb,  182,  191. 

V.  Shaw,   119. 
Fuentes  v.  Montis,  116. 
Fuller  V.  Bradley,  222,  303,  806,  811. 

V.  Coats,  282,  284,  289. 

V.  Railroad  Co.,  311. 
Fullerton  v.  Sturges,  142. 
Fulton  V.  Alexander,  72. 

V.  Railway  Co.,  508. 
Funkhouser  v.  Wagner,  31_ 
Furlow  V.  Gillian,  3. 
Furman  v.  Railroad  Co.,  368. 
Furness  v.  Bank,  154. 
Furstenheim  v.  Railroad  Co.,  541. 


GASES  OITBD. 


687 


[The  Qgures  refer  to  pnpres.l 


G 


Gaff  ▼.  O'Nell.  180. 
Gage  V.  Punchard,  158. 

V.  Tlrrell,  312,  434. 
Gaines  v.  Insurance  Co.,  416,  467. 
Gains  v.  Ti-ansportation  Oo.,  855. 
Gale  V.  Ward,  124. 
Galena  &  C.  U.  R.  Co.  v.  Fay,  621. 

V.  Jacobs,  528. 

V.  Rae,  324,  325,  346,  654,  556. 
Gales  V.  Hallman,  413. 
Gallaher  v.  Cohen,  116,  135. 
Galligher  v.  Jones,  161. 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Bar- 
nett,  544. 

V.  Parsley,  4t>5. 

V.  Tuckett.  409. 

V.  Turner,  534. 
Galway  v.  Fullerton,  110. 
Gamber  v.  Wolaver,  238. 
Game  v.  Harvle,  78. 
Ganley  v.  Troy  City  Nat.  Bank,  82. 
Garden  Grove  Bank  v.  Humeston  & 

S.  Ry.  Co.,  437. 
Gardner  v.  New  Haven  &  N.  R.  Co., 

491,  495,  500,  501. 
Garland  v.  Lane,  548. 
Garllck  v.  James.  120,  158,   164,  166. 
Garrison  v.  Memphis  Ins.  Co.,  364. 
Garslde  v.  Navigation  Co.,  455. 
Garton  v.  Railway  Co.,  323,  337,  338, 

342. 
Gashweller  v.  Railway  Co.,  460. 
Gass  V.  New  York,  P.  &  B.  R.  Co.,  247, 

465,  475. 
Gastenhofer  v.  Clair,  269.  270,  274. 
Gaston    v.    American    Exchange    Nat. 

Bank,  146. 
Gates  V.  Railway  Co.,  526. 

V.  Ryan,  333,  453. 
Gatliffe  v.  Bourne,  452,  455. 
Gaty  V.  Holllday,  153. 
Gauche  v.  Mayer,  21. 
Gautret  v.  Egerton,  528. 
Gay  V.  Bates,  81,  241. 

V.  Moss.  107. 
Gazelle,  The,  333. 
Geddes  v.  Bennett,  128,  172. 
Geismer  v.  Railway  Co.,  364, 
Generous,  The,  359. 
Geneva,  I.  &  S.  R.  Co.  v.  Sage,  848. 
George,  The,  182. 


George  v.  Elliott,  211. 
Georgia  R.  Co.  v.  Cole,  464. 

V.  McCurdy,  537. 
Georgia    Railroad    &   Banking   Co.    t. 
Keener,  425. 

V.  Murrah,  346. 

V.  Smith,  331,  507. 
Georgia  &.  C.  R.  Co.  v.  Bigelow,  513. 
Gerber  v.  Monie,  21,  22,  34. 
Gerhard  v.  Neese,  409. 
German  v.  Railroad  Co.,  375,  431. 
German   Bank  of   Memphis  v.   U.   S., 

485. 
Germania  Ins.  Co.  v.  The  Lady  Pike, 

362. 
Germania  Nat.  Bank  v.  Case,  110. 
German  Nat.  Bank  v.  Burns,  236. 
Geron  v.  Gerou,  153,  158. 
Gibbon  v.   Paynton,  27,  70,  366,  886, 

445,  446. 
Gibbons  v.  Farwell,  36a 

v.  U.  S.,  485. 
Gibbs  V.  Chase,  89. 
Giblln  V.  McMullen,  25,  64. 

V.  Steamship  Co.,  377. 
Gibson  V.  Brown,  332. 

V.  Chillicothe     Branch     of     State 
Bank  of  Ohio.  148. 

V.  Culver,  448-450,  455. 

V.  Express  Co.,  452. 

V.  Hatchett,  237. 

V.  Inglis,  248. 

V.  Railroad  Co.,  533. 

V.  Stevens,  120,  127,  128,  146,  147, 
149. 

V.  Sturge,  332,  342. 
Gilbart  v.  Dale,  30,  31,  241,  352,  555. 
Gilbert   v.   Manchester   Iron   Manuf'g 
Co.,  127. 

V.  Railway  Co.,  518,  538. 
Gile  V.  Libby,  2.S0,  282,  283. 
Giles  V.  Bradley,  15. 

V.  Fauntleroy,  286,  299,  300. 
Gill  V.  Middleton.  24.  OS. 

V.  Railroad  Co.,  353. 
Gillenwater  v.  Railroad  Co.,  496. 
Gillespie  v.  Railroad  Co.,  359. 
Glllett  V.  Ellis,  362. 

V.  Mawman,  216,  217. 
Gilllat  V.  Lynch,  112,  113. 
Gillis  V.  Railroad  Co..  529. 
Gillshannon  v.  Railroad  Corp.,  496. 
Gilmore  v.  Carman,  303. 


5S8 


OASES  CITED. 


[The  figures  refer  to  pages.] 


Gilpen  v.  Leksell,  173. 
Gilpin  V.  Howell,  159. 
Gilpins  V.  Consequa,  411. 
Gilson  V.  Gwlnn,  225,  344. 

V.  Martin,  153. 
Girard  Fire  &  Marine  Ins.  Co,  v.  Marr, 

155. 
Gisboum  v.  Hurst,  304. 
Gittings  V.  Nelson,  119. 
Glasco  V.  New  York  Cent  R.  Co.,  885. 
Gleadell  v.  Thtomson,  349,  454. 
Gleason  v.  Beer's  Estate,  236. 

V.  Drew,  107,  121, 

V.  Transportation    Co.,    367,    882, 
394,  395,  398,  440,  514. 
Glenn  v.  Express  Co.,  430. 

V.  Jackson,  299. 
Globe  Works  v.  Wright,  225. 
Glovinsky  v.  Steamship  Co.,  379. 
Glyn,  Mills,  Currie  &  Co.  v.  East  & 

West  India  Dock  Co.,  148. 
Goddard  v.  Mallory,  318,  407. 

V.  Railway  Co.,  523,  524. 
Goggerley  v.  Cuthbert,  138. 
Goggin  V.  Railroad  Co.,  430. 
Goines  v.  McCandless,  506. 
Golden  v.  Romer,  31,  241. 
Goldey  v.  Railroad  Co.,  354,  378. 
Goldsmidt  v.  Trustees  of  First  Meth- 
odist Episcopal  Church  in  Worthlng- 
ton,  169. 
Goldstein  v.  Hort,  107.  128,  129,  135, 
199. 

V.  Railway  Co.,  529. 
Good  V.  Railroad  Co.,  431. 
Goodall  V.  Richardson,  157. 
Goodenow  v.  Dunn,  119. 

V.  Snyder,  41. 
Goodfellow  V.  Meegan,  31. 
Goodman  v.  Navigation  Co.,  476. 

V.  Simmonds,  141. 
Goodrich  v.  Thompson,  318,  361,  407. 

V.  Willard,  222,  250. 
Goodwin  V.  Conklin,  139. 

V.  Railroad  Co.,  453. 

V.  Robarts,  143. 
Goodwyn  v.  Douglas,  544. 
Goold  V.  Chapln,  459,  465. 
Gordon  v.  Buchanan,  307. 

V.  Cox,  296. 

V.  Harper,  197. 

V.  Hutchinson,  306,  307. 

V.  Railroad  Co.,  500,  510. 


Gore  V,  Transportation  Co.,  894,  896, 

398. 
Gorhan  Manuf'g  Co.  v,  Fargo,  366. 
Gorman  v.  Campbell,  193. 
Gosling  V.  Higgins,  352,  477. 
Goss  V.  Emerson,  134. 
Gossler  v.  Schepeler,  480. 
Gott  V.  Dinsmore,  438. 
Gottlieb  V.  Hartman,  135. 
Gould  V.  Hill,  421. 
Govett  V.  Radnidge,  553. 
Grabfelder  v.  Lockett,  131. 
Grace  v.  Adams,  415,  441,  442. 
Gracie  v.  Palmer,  350. 
Grafifam  v.  Railroad  Co.,  391. 
Grafton,  The,  456. 
Graham  v.  Davis,  355. 

V.  Dyster,  114. 

V.  Railway  Co.,  528. 
Grand  Era,  The,  472. 
Grand  Island   Sav.   &   Loan   Ass'n  T. 

Moore,  163. 
Grand  Rapids  &  I.  R.  Co.  v.  Diether, 
326. 

v.  Huntley,  521. 
Grand  Tower  Manuf'g  &  Transp.  Oo. 

V.  Ullman,  314. 
Grand  Tnink  R.  Co.  v.  Ives,  23. 

V.  Stevens,  498. 
Grant  v.  Button.  218,  220. 

V.  Holden,  158. 

V.  Kidwell,  141. 

V.  Ludlow's  Adm'r,  89. 

V.  Newton,  383. 

V.  Norway,  437. 
Grapeshot,  The,  552. 
Graves  v.  Moses,  202. 

V.  Railroad  Co.,  366,  427-428. 

V.  Smith,  32,  61. 

v.  Ticknor,  57,  61,  74,  80. 
Gray  v.  Agnew,  114. 

V.  Armistead,   117. 

V.  Carr,  346. 

V.  Com.,  257, 

V.  Jackson,  322,  467.  ' 

V.  Johnston,  32. 

V.  Merrlam,  45,  48,  63,  71. 

V.  Missouri  River  Packet  Co.,  179. 

V.  Railroad  Co.,  506. 
Great   Northern   R.   Oo.   v.   Harrison, 
495. 

V.  Shepherd,  36(5,  380,  388,  397. 

V.  Swaffield,  403. 


CASES   CITED. 


689 


[The  figures  refer  to  pages.] 


Great  Western  R.  Co.  v.  Bagge,  838. 

V.  Blake,  311,  540. 

V.  Bums,  327,  402. 

V.  Croucli,  452,  479. 

V.  McComas,  544,  549. 

V.  Miller,  533,  535. 

V.  Sutton,  33G,  337,  341. 

V.  Willis,  317. 
Green  v.  Birchard,  Gl. 

V.  Clarke,  60,  544,  549. 

V.  Farmer,  112,  222,  230. 

V.  Greenback,  83. 

V.  Hollingsworth,  3,  8,  61,  62,  92, 

9u,  t)S,  m. 

V.  Railroad  Co.,  319,  338,  501,  514. 

V.  Sinker,  Davis  &  Co..  120. 

V.  Speery,  193. 
Greenbaum  v.  Megibben,  149. 
Gregg  V.  Hilson,  249. 

V.  Wyman.  191. 
Gregory  v.  Morris,  109. 

V.  Pike,  154,  158. 

V.  Stryker.  235. 
Qreismer  v.  Railroad  Co.,  410. 
Griffln  V.  Rogers,  108. 
Griffith  V.  Cave,  311. 

V.  Ingledew,  544,  546,  54a 

V.  Railway  Co.,  537. 

V,  Zipperwlck,  61,  62. 
Griffiths  V.  Lea,  352. 
Grigsby  v.  Chappell,  314. 
Grill  V.  Iron  Screw  Collier  Co.,  24. 
Grimes  v.  Pennsylvania  Co.,  500. 

V.  Watkins,  160. 
Grlndle  v.  Express  Co.,  411. 
Grinnell  v.   Cook,    171,   222,   224.   225. 
266,  270,  271,  275,  280,  284,  295,  296, 
298. 
Griswold  v.  Davis,  135. 

V.  Haven,  150. 

V.  Insurance  Co.,  332. 

V.  Railroad  Co.,  528,  531. 

V.  Seligman,  155. 

V.  Webb,  506. 
Grive  V.  Dunham,  481. 
Grocers'  Bank  v.  Penfleld,  140. 
Grogan  v.  Adams  Exp.  Co.,  425. 

V.  Railway  Co.,  533. 
Gronstadt  v.  Witthoff,  433. 
Gross  V.  Eiden,  227. 
Grosso  V.  Delaware.  I..  &  W.  R.  Co., 

560. 
Grosvenor  v.  I'hillips,  127. 


Grosvenor  v.   Railroad  Co.,  818,  818, 

319. 
Grove  v.  Brien,  546. 
Grover  v.  Grover,  125. 
Grover  &  B.  S.  M.  Co.  v.  Missouil  Pac. 

R.    Co.,   318,   468,   470,   47L 
Gruman  v.  Smith,  159. 
Grund  v.  Pendergast,  556. 
Guldhall,  The,  441. 
Guiding  Star,  The,  437,  55a 
Guillaume  v.  Packet  Co.,  477. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Balrd,  473. 

V.  Booton,  425. 

V.  Campbell.  405. 

V.  Clarke,  473. 

V.  Gaun,  403. 

V.  Golding.  470. 

V.  Higby,  518. 

V.  Hodge,  325. 

V.  Hughes,  408. 

V.  Hume,  409. 

V.  Insurance  Co.,  62. 

V.  Kemp,  332. 

V.  Kirkbridge,  536. 

V.  Kuenhle,  536. 

V.  Levi,  351.  365,  369,  410. 

V.  McGown,  416. 

V.  McGowan.  424,  530. 

V.  Malone,  476. 

V.  Sain,  538. 

V.  Strickliii.  518. 

V.  Trawick.  314,  375,  416,  429. 

V.  Wallen,  527. 

V.  Wilhi'lm.  403. 

V.  Williams,  474. 

V.  Wilson.  435. 

V.  Wright,  513. 
Gulliver  v.  Adams  Exp.  Co.,  810,  460. 
Gump  V.  Showalter,  294. 
Gurley  v.  Armstead,  326.  327. 
Gumey  v.  Behrend,  147. 
Gwyn  V.  Railwad  Co.,  480. 


H 

Haas  V.  Bank  of  Commerce,  IBS. 

V.  Railroad  Co.,  410. 
Haase  v.  Navigation  Co.,  495. 
Hnber  v.  Brown.  142. 
Hadji,  The.  428,  450. 
Hadley  v.  Baxendale,  559,  563. 

V.  Clarke,  411. 


590 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Hadley  v.  Cross.  23,  200. 

V.  Upshaw,  283. 
Hagar  v.  Union  Nat.  Bank,  110,  153. 
Hagebush  v.  Ragland,  16,  27,  83,  92. 
Hagerstown  Bank  v.  Adams  Exp.  Co., 

412. 
Haggerty  v.  Railroad  Co.,  318. 
Haille  v.  Smith,  127. 
Haines  v.  Railroad  Co.,  387,  388. 
Halbrook  v.  Wight,  79. 
Hale  V.  Barrett,  232.  233,  346,  349. 

V.  Milwaukee  Dock  Co.,  150. 

V.  Navigation  Co.,  310,  364. 

V.  Rawallie,  61. 

V.  Walker,  154. 
Hales  V.  Railway  Co.,  558. 
Hall  V.  Corcoran,  17.  181,  191. 

V.  Hollander,  560. 

V.  Page,  130. 

V,  Pickard,  196. 

V.  Pike,  261,  265.  271,  272. 

V.  Pillsbury,  246. 

V.  Railroad   Corp.,   23,   24,   29,   32, 
477,  511,  536. 

y.  Renfro,  311. 

V.  Rose  Hill  &  E.  Road  Co.,  144. 

V.  Tittabawssee  Boom  Co.,  227. 

V.  Tuttle.  91. 
Hallack  Lumber  Manuf  g  Ca  v.  Gray. 

160,  166. 
Halliday  v.  Holgate,  160. 

V.  Railroad  Co.,  435,  472. 
Hallock  V.  Mallett.  239. 
Halty  V.  Markel,  27. 
Halyard  v.  Dechelman,  30,  197. 
Ham  V.  Canal  Co.,  494.  534. 

V.  Ham,  146. 
Hamaker  v.  Blanchard,  58. 
Hambly  v.  Trott,  553. 
Hamburg-American     Packet     Co.     v. 

Gattman,  385,  386. 
Hamilton  v.  Cunningham,  157. 

V.  Elstner,  240. 

V.  Nickerson,  32. 

V.  Railroad  Co.,  514,  528,  565,  587. 

V.  Schaack,  168. 

V.  State  Bank,  107. 
Hamlin  v.  Railroad  Co.,  516,  517,  564. 
Hammond  v.  Danielson,  227,  229. 

V.  Railroad  Co.,  494. 
Hance  v.  Boom  Co..  60. 

V.  Railroad  Co..  433,  435. 

V.  Ripley,  225. 


Hancock  v.  Franklin  Ins.  Co.,  132,  166. 

V.  Rand,  265,  267,  268,  271,  272. 
Hand  v.  Baynes,  360.  361. 
Handford  v.  Palmer,  201,  202. 
Handy  v.  Railroad  Co.,  340. 
Handy's  Estate,  In  re,  104. 
Hanley  v.  Railroad  Co.,  491. 
Hanlin  v.  Walters.  296. 
Hanmer  v.  Wilsey,  60. 
Hanna  v.  Holton,  11,  157. 

V.  Phelps,  231. 
Hannibal  &  St.  J.  R.  Co.  v.  Martin.  501. 

V.  Swift,   311,    312,   382,   386,   397, 
502,  505. 
Hansen  v.  Railroad  Co.,  471,  472. 
Hanson  v.  Railway  Co.,  565. 
Harbeck,  The  Elvira,  390. 
Hard  v.  Neaving.  93. 
Hardenbergh  v.  Railway  Co.,  504. 
Hardmau  v.  Brett.  413. 

V.  Willcock.  479. 
Hare  v.  Fuller,  197. 
Harmony  v.  Bingham,  331,  411, 
Harner  v.  Dipple,  16. 
Harp  V.  The  Grand  Era,  472. 
Harrington  v.  King,  14. 

V.  Lyles,  353. 

V.  McShane.  310,  311,  323. 

v.  Snyder.  30.  87,  90.  186.  187,  191, 
202.  203.  211. 
Harris  v.  Birch.  108. 

V.  Bradley.  12:5,  243. 

V.  Packwood,  SO,  93.  331,  414,  415. 

V.  Railroad  Co.,  341,  369,  375,  403, 
4(i8.  472,  527. 

V.  Stevens,  501. 

V.  Woodruff.  222.  223. 
Harrison  v.  Fiuk.  534, 

V.  Marshall,  91. 

V.  Murrell.  210. 

V.  Railroad  Co.,  318,  411. 

V.  Roy,  305. 
Hart  V.  Baxendale.  325. 

V.   Hyde.  21. 

V.  Railroad  Co.,  428,  473,  474. 

V.  Skinner.  89,  193.  194. 

V.  Ten  Eyck,  105. 
Hartan  v.  Railroad  Co.,  540. 
Harter  v.  Blaiichijrd.  51.  53,  87. 
Hartford  v.  .Tackson,  186. 
Hartley  v.  Hitchcock.  2.33. 
Hartop  v.  Hoare.  135. 
Hartwell  v.  Express  Co.,  442. 


CASES   CITED. 


691 


[The  figures  refer  to  pages.] 


Harvey  v.  Epes,  195. 

V.  Railroad  Co.,  426,  427,  544,  556. 

V.  Rose,  311. 
Hasbrouek   v.    Vandervoort,    98,    120, 

132. 
Haskell  v.  Lambert,  142. 
Haskins  v.  Kelly,  107,  121,  175. 
Haslam  v.  Adams  Exp.  Co.,  450. 
Hass  V.  Railroad  Co.,  305. 
Hasse  v.  Express  Co.,  450. 
Hastings  v.  Popper,  312,  407. 
Hatch  V.  Douslas,  126. 
Hatchett  v.  Gibson,  239,  240. 
Hathaway  v.   Haynes,   122,   140. 
Hathway  v.  Brady,  74. 
Hattle  Palmer,  The,  450. 
Haven  v.  Low,  107. 
Havens  v.  Railroad  Co.,  508. 
Hawcroft  v.  Railway  Co.,  504,  516. 
Hawkes  v.  Smith,  352. 
Hawkins  v.  Hoffman,  29,  309,  380,  3S4, 
477,  553. 

V.  Railroad  Co.,  402,  421,  434. 

V.  The  Hattie  Palmer,  450. 
Hawks  V.  Hinchcliff,  158. 
Hawley  v.  Brumagim,  159. 
Hayden  v.  Davis,  176. 

V.  Lincoln   City   Electric   Ry.   Co., 
136. 
Hayes  v.  Riddle,  412. 

v.  Wells,  Fargo  &  Co.,  310,  366,  478. 
Haynes  v.  Railroad  Co.,  405. 
Hays  V.  Kennedy,  353,  354,  357. 

V.  Millar,  313. 

V.  Paul,  313. 

V.  Pennsylvania  Co.,  336-338,  340. 

V.  Riddle,  151,  172,  348. 

V.  Stone,  547. 
Hayward  Rubber  Co.  v.  Duncklee,  22. 
Hazard  v.  Loring,  108. 

V.  Manning,  233. 

V.  Wells,  156. 
Healey  v.  Gray,  270. 
Heath  v.  Silverthom  Lead   Mining  & 

Smelting  Co.,  120. 
Hedges  v.  Railroad  Co.,  454,  457,  458. 
Heenrlch  v.  Pullman  Palace  Car  Co., 

523. 
Hegeman  v.  Railroad  Corp.,  520,  521. 
Heiraann  v.  Telegraph  Co.,  4.30. 
Helnleln  v.  Railroad  Co..  501. 
Helrn  v.  M'Caughan,  510,  5G2-564. 
Hell! well  v.  Railroad  Co.,  403,  472. 


Hellman  v.  Holladay.  382,  885,  38a 
Hemphill  v.  Chcnio,  448,  449. 
Henderson  v.  Railroad  Co.,  392,  40L 

V.  Steven.son,  510. 
Hendricks  v.  Decker,  90. 

V.  Mount,  79. 

V.  Robinson,  111,  154. 
Hendryx  v.  Railroad  Co.,  493. 
Henry  v.  Eddy,  150,  160. 

V.  Patterson,  3,  21. 

v.  Porter,  61. 
Hensel  v.  Noble,  230,  231. 
Henshaw  v.  Rowland,  455. 
Herber  v.  Thompson,  123. 
Herbert  v.  Mark  well,  283. 
Hermann  v.  Goodrich,  456,  465. 
Herrick  v.  Gallagher,  4.52. 
Herrman  v.  Maxwell,  153. 
Herryford  v.  Davis,  179. 
Hersh  v.  Railway  Co.,  337,  338,  340. 
Heugh  V.  Railroad  Co.,  30,  32,  478. 
Hewett  V.  Railroad  Co.,  362,  402. 
Heyland  v.  Badger,  107. 
Hibbard  v.  Railroad  Co.,  514,  534. 
nickerson  v.  Raiguel,  138. 
Hickey  v.  Morrell,  239. 
Hickman  v.  Thomas,  223,  266,  271,  296. 
Hickok  V.  Buck,  186,  211. 
Hickox  V.  Railroad  Co.,  315. 
Hicks  V.  National  Life  Ins.  Co.,  175. 
Hide  V.  Proprietors,  414. 
Hieskell    v.    Farmers'    &    Mechanics' 

Nat.  Bank.  148. 
Higginbotham  v.  Railroad  Co.,  351,  352. 
Higgins  V.  Railroad  Co.,  496.  531. 
Higginson  v.  Weld,  556. 
Highland  Ave.  &,  B.  R.  Co.  v.  Donovan, 

522. 
Higley  v.  Gilmer,  495. 
Hill  V.  Burgess,  225. 

V.  Finigan,  168,  170, 

V.  Humphreys.  450. 

V.  Owen,  282. 

V.  Raili-oad  Co.,  427,  429,  435,  468. 
513,  .522,  538. 

V.  Sturgeon,  354. 

V.  U.  S..  485. 

V.  Wiggiu,  SO. 
Hilllard  v.  Hlchard.son,  205. 
Hlllls  V.  Railroad  Co.,  392,  397. 
Hill  Manuf'g  Co.   v.   Boston  &   L.   R. 

Corp.,  4()7,  468.  471,  472,  474. 
Hills  V.  Smith,  154. 


592 


CASES  CITED. 


[The  flgrures  refer  to  pages.] 


Hillyard  v.  Crabtree's  Adm'r,  220,  237. 

Hiltou  V.  Adams,  268,  273,  288. 

Hines  v.  Strong,  109. 

Hinsdell  v.  Weed,  333. 

Hinson  v.  Hinson,  82. 

Hinton  v.  Dibbin,  24. 

Hirsch  v.  The  Quaker  City,  457. 

Hirschsohn  v.  Packet  Co.,  379,  381. 

Hirshberg  v.  Dinsmore,  430,  431. 

Hisoox  V.  Greenwood,  225. 

Hoadley    v.    Transportation    Co.,    361, 

362,  415,  434,  435. 
Hoagland  v.  Railroad  Co.,  553. 
Hoar  V.  Railroad  Co.,  491,  496,  498. 
Hoard  v.  Garner,  157. 
Hoare  v.  Parker,  113,  171. 
Hobbs  V.  Railroad  Co.,  492,  517,  535, 

563. 
Hodges  V.  Hurd,  21,  96. 
Hodgson  V.  Le  Bret,  124. 

V.  Shaw,  174. 
Hoebrik  v.  Carr,  532. 
Hoeger  v.  Railway  Co.,  387,  462,  463. 
Hoell  V.  Paul,  98. 
Hoffbauer  v.   Railroad   Co.,  514,   534, 

535. 
Hoffman  v.  Carrow,  117. 

V.  Noble,  114. 

V.  Railroad  Co.,  523. 

V.  Tuolumne    County    Water    Co., 
26. 
Holbrook  v.  Baker,  111. 

V.  Wight,  127,  146,  232,  233. 
Holder  v.  Soulby,  208,  261. 
Holderman  v.  Manier,  231,  233. 
Holderness  v.  Collinson,  222,  248. 
Holdridge  v.  Railroad  Co.,  462. 
Hole  V.  Dlgby,  506. 
Holford  V.  Adams,  331. 
Holladay  v.  Kennard,  364,  365. 
Holland  Trust  Co.  v.  Waddell,  165. 
Holler  V.  Coleson,  60. 
HoUingsworth  v.  Dow,  225,  226. 
Hollinshead  v.  Mactur,  221. 
Hollister  v.  Central  Nat.  Bank,  44,  155. 

V.  Nowlen,  309.  311,  312,  322,  354, 
355,   306,   377,    378,   421,   438- 
440,  491,  502. 
Holly  V.  Huggeford,  22. 

V.  Railroad,  491. 
Holmes  v.  Bailey,  147. 

V.  Crane,  171. 

V.  German   Security   Bank,   146. 


Holmes  v.   Railway  Co.,  529. 

V.  Rice,  16. 

V.  Traction  Co.,  522. 

V.  Wakefield,  536. 
Holsapple  v.  Railroad  Co.,  552. 
Hoist  V.  Pownal,  482. 
Holt  V.  Westcott,  333. 
Holty  V.  Markel,  250. 
Holtzclaw  V.  Duff,  239,  246,  303,  460. 
Holyoke  Bank  v.  Burnham,  154. 
Home  Ins.  Co.  v.  Baltimore  Warehouse 

Co.,  215. 
Homer  v.  Thwing,  17,  186,  187,  191. 
Homes  v.  Crane,  107,  109. 

V.  Smyth,  137. 
Honeyman  v.  Railroad  Co.,  322,  323, 

384. 
Hood  V.  Railroad  Co.,  467,  468,  540. 
Hoopyer  v.  Railway  Co.,  544,  546. 

V.  Ramsbottom,  135. 

V.  Robinson,    215. 

V.  Wells,   Fargo   &   Co.,   310,   851, 
433. 
Hoor  V.  Barker,  128. 
Hope  V.  Lawrence,  160. 
Hopkins  v.  Westcott,  382,  428,  446. 
Hopper  V.  ^Miller,  197. 

V.  Smith,  160. 
Horn  V.  Bensusan,  334. 

V.  Railroad  Co.,  317. 
Home  V.  Meakin,  23,  186,  200. 

V.  Midland  Ry.  Co.,  558. 
Horner  v.  Dennis,  130. 

V.  Harvey,  267. 
Horr  V.  Barker,  149. 
Horsely  v.  Chaloner,  182. 
Horton  V.  Morgan,  159. 
Hosmer  v.  Clarke,  75. 
Hostler.  Case  of  an,  222,  257. 
Hotchkiss  V.  McVikar,  60. 

V.  National  Banks,  136. 
Houck  V.   Railway  Co.,  506. 
Houseman  v.  The  North  Carolina,  546. 
Houser  v.  Tnlly,  282,  283,  289. 
Housman  v.  Transportation  Co.,  409. 
Houston  &  T.  C.  R.  Co.  v.  Burke,  416, 
424. 

V.  Clemmons,   514. 

V.  Ford,  513. 

V.  Fowler,  .526. 

V.  Hampton,  494. 

V.  Moore,  492,  498. 

V.  Park,  472. 


CASES   CITED. 


693 


[The  figures  refer  to  papes.] 


Houston  &  T.  O.  R.  Co.  v.  Rust,  339. 

V.  Smith,  327. 
Houton  V.  Holllday,  153,  158. 
Howard  v.  Ames,  170. 

V.  Babcock,  92. 

T.  Farr,  197. 

V.  Macondray,  349. 

V.  Raeber,  74. 

V.  Roeben,  48. 

V.  Steamboat  Ck).,  478. 
Howard,  The,  v.  Wlssraan,  869, 
Howell   V.  Jackson,  276,   297, 
Howe  Mach.  Co.  v.  Pease,  279,  281. 
Howes   V.   Ball,  233. 
Howland  v.  Woodruff,  116. 
Howth  V.  Franklin,  261,  264,  278,  279. 
Hoyt  V.  Baker,  149. 

V.  Gelston,  60.  91,  97. 
Hozier  v.  Railway  Co.,  337, 
Hubbard  v.  Express  Co.,  355,  365. 
Hudmon  v.  Du  Bose,  32,  243. 
Hudson  V.  Baxendale,  369. 

V.  Railroad  Oo.,  408,  416,  431. 

y.  Wilkinson,    11,    160. 
Hudston  V.  Railroad  Co.,  383. 
Hufford  V.  Railroad  Co.,  511,  565. 
Hughes  V,  Lenny,  233. 
Hughson  V,  Railroad  Co,,  495. 
Hulbert  v.  Railroad  Co.,  532. 
Hulett  V,  Swift,  266,  280,  286. 
Hull  V.  Railway  Co.,  415. 
Hume  V.  Tufts,  22. 
Humphrey    v.    County    Nat.    Bank    of 

Clearfield,  175. 
Humphreys  v.  Perry,  387,  388. 

V.  Reed,  311,  349,  553. 
Hunnewell  v.  Taber,  406. 
Hunsaker  v.  Sturgis,  153,  158. 
Hunt  V.  Haskell.  350,  553. 

V.  Holton,  180. 

V.  Morris,  363.    ■ 

V,  Nevers,  162,  166,  178. 

V,  Railroad  Oo,,  334. 

V,  Rousmaniere,  76, 

V.  Wyman,  9. 
Hunter  v.  Hamilton,  165. 
Huntington  v.  Dinsmore,  442. 

V.  Douglass,  97. 
Huntley  v.  Dows,  334. 
Huntress,  The,  367. 
Huntsman  v.  Fish,  75. 
Hurd  V.  West,  7,  82.  90,  91,  97,  197. 
Hursh  V.  Byers,  272, 

LAWBAILM, — 38 


Hurst  V,  Coley,  151, 

Hurt  V.  Railway  Co.,  5.38.  539. 

Hussey  v.  The  Saragossa,  352. 

Huston  V,  I'eters,  448. 

Hutehings  v.  Western  &  A.  R.  R,,  383 

Hutchlns  V.  Brackett,  487,  488. 

V.  State  Bank,  117, 
Hutchinson  v.   Bours,  114,  115. 

V,  Com.,  245. 

V.  Gulon,  406. 

V.  Railroad  Co.,  366,  433,  496, 
Hutton  V.  Amett,  172. 
Hyams  v,  Bamberger,  168,  175. 
Hyatt  V.  Adams,  560, 

V,  Taylor,   292. 
Hyde  v.  Navigation  Co.,  310,  311,  352, 

363,    448,   450. 
Hyland  v.  Paul,  93,  203. 
Hyperion's  Cargo,  The,  347. 


Idaho,  The,  79,  100,  146,  176,  479. 
lUinois  Cent,  R.  Co.  v.  Able,  537. 

V,  Adams,  402,  403,  421, 

V,  Axley,   493. 

V,  Brelsford,  369. 

V.  Chambers,  537, 

V.  Cobb.  558, 

V.  Copelaud,  381.  382,  469,  472,  540 

V.  Davidson,  527. 

V.  Frankeuberg.  469,  472. 

V.  P>elka.  495,  528. 

V.  Godfrey,  529. 

V.  Green.  527. 

V,  Hall,  307, 

V,  Hoffman,  529, 

V,  Jolmson.  469,  472,  50a 

V,  Jonte,  442. 

V.  Kerr,  471,  472. 

V.  Latimer,  535,  536. 

V,  Miller,  549, 

V,  Morrison,  421,  531. 

V,  Nelson,  492, 

V,  Park.  553. 

V.  Peterson.  404. 

V.   Phillips,  521. 

V.   Read.  421,  519,  531. 

V.  Srliwartz,  544.  549. 

V.   Sciuggs.  375. 

V,  Smyser.  314,  319,  42L 

V.  Taylor,  53a 


694 


CASES  CITED. 


[The  figures  refer  to  pagps.) 


Illinois  CJent   R.   Ck).   v.  Whittemore, 

nOS.  533.  535. 
Illinois  Land  &  Loan  Co.  v.  Bonner,  16. 
Illinois  &  St  L.  Ry.  etc.,  Co.  v.  Cobb, 

60. 
Imhoff  V.  Railroad  Co.,  539. 
Independence  Mills  Co.  v,  Burlington, 

C.  R.  &  N.  Ry.  Co.,  459,  461. 
Indiana  Cent.  R.  Co.  v.  Hudelson,  500. 

V.  Mundy,  531. 
Indiana  &  I.  C.  Ry.  Co.  v.  McKernan, 

lOG. 
Indianapolis,  B.  &  W.  Ry.  Co.  v.  Bir- 
ney,  565. 
V.  Strain,  421. 
Indianapolis,  D.  &  S.  R.  Co.  v.  Ervin, 

340. 
Indianapolis,  P.  &  C.  Ry.  Co.  v.  Pitzer, 
523. 
V.  Rinard,  502,  509. 
Indianapolis  &  C.  R.  Co.  v.  Cox,  444. 
Indianapolis  &  St.  L.  R.  Co.  v.  Hem- 
don,  350,  553. 
V.  Horst,  518,  520. 
Ingalls  V.  Bills,  517,  521. 

V.  Brooks,  361. 
Ingallabee  v.  Wood,  270,  300. 
Ingalsbee  v.  Wood,  266,  280. 
Ingate  v.  Christie,  305,  311. 
Inger.soll   v.    Van   Bokkelin,    134,    151, 

412. 
Ingham  v.  Vaden,  138. 
Inglebright  v.  Hammond,  7,  82. 
Ingledew  v.  Railroad  Co..  558. 
Ingraham  v.  Disborough,  120. 
Inhabitants  of  Plantation  No.  4  v.  Hall, 

468,  470. 
Inman  v.  Railway  Co.,  413. 
Insurance  Co.  v.  Kiger,  2.39. 

V.  Railroad  Co.,  469,  475. 
Insurance  Co.  of  North  America  v.  St. 

Louis,  I.  M.  &  S.  R.  Co.,  405. 
International  Bank  v.  German  Bank, 

142,  143. 
Inter-national  Exp.  Co.  v.  Grand  Trunk 

Ry.  of  Canada,  327. 
International  &  G.  N.  R.  Co.  v.  Ander- 
son, 410,  467. 
V.  Eckford,  538. 
V.  Foils.  476. 
V.  Halloren,  528. 
T.  Smith,  538. 
V.  Terry,  537. 


International  &  G.  N.  R.  Co.  v.  Tis- 
dale,  410,  471,  472. 

V.  Underwood,  431. 

V.  Welch,  518. 

V.  Wentworth,  360,  41L 

V.  Wilkes,  508. 

V.  Wolf,  476. 

V.  Young,  325. 
Interstate   Commerce    Commission    v. 

Baltimore  &  O.  R.  Co.,  337. 
Ionic,  The,  383. 
Irish  V.  Cloyes,  194. 

V.  Railway  Co.,   468. 

V.  Sharp,  120. 
Irons  V.  Kentner,  7,  8,  246. 
Isaack  v.  Clark.  13,  89,  187. 
Isaacs  V.  Railroad  Co.,  491. 
Isaacson  v.  Railroad  Co.,  318,  443,  4ft4- 
Isabella,  The,  442. 
Isett  V.  Lucas,  142. 
Ives  V.  Hartley,  82. 
Izett  V.  Mountain,  414. 


Jackman  v.  Partridge,  75,  80. 
Jackson  v.  Cummins.  223-225. 

V.  Nichol,  347. 

V.  Railroad  Co.,  241,  459,  518. 

V.  Robinson,  202. 

V.  Tollett,  518. 
.Jackson  Co.  v.  Boylston  Mut  Ins.  Co., 

413. 
Jacobs  V.  Knapp,  227. 

V.  Latour,  223. 

V.  Tutt,  385,  386,  462. 
Jacobus  V.  Railroad  Co.,  497,  498,  519, 

530,  531. 
Jalie  V.  Cardinal,  267,  283,  289. 
James  v.  Greenwood,  24,  236. 

V,  Griffin,  481. 
James'  Appeal,  112. 
Jamison  v.  Hendricks,  194. 

V.  Railroad  Co.,  525. 
Jamison  &  Co.'s  j-state.  In  re,  159. 
Janney  v.  Merchants'  &  Planters'  Nat. 

Bank,  145. 
Jardine  v.  Ooraell,  536. 
Jarvis  v.  Rogers,  11,  112,  118,  134,  145, 

171,  231. 
Jaudon  v.  National  City  Bank,  146. 
Jeaues'  Appeal,  168. 


CASES   CITED. 


695 


[The  figures  refer  to  pages.] 


Jeffersonvllle,  M.  &  I.  R.  Co.  v.  Riley, 

523,  532. 
Jeffersonvllle  R.  Co.  v.  Cleveland,  456. 

V.  Rogers,  509. 

V.  White,  32,  243,  244. 
Jeffords  v..  Crump.  273. 
Jencks  v.  Coleman,  277,  491,  503. 
Jenkins  v.  Bacon.  30,  32. 

V.  Eichelberger,  7. 

V.  Railway  Co.,  491, 

V.  Schaub,  135. 
Jenks  V.  Fulmer,  481, 
Jenner  v.  Jollffe,  16. 
Jennings  v.  Camp,  218-220. 

V.  Gage,  117. 

V.  Mcllroy,  130. 

V.  Merrill,  116. 

V.  Railway  Co.,  316,  432. 

V.  Rundall,  17,  83,  187. 
Jerome  v.  McCarter,  171. 
Jesurun  v.  Kent,  234. 
Jewell  V.  Sehroeppel,  219,  220. 
Tewett  V.  Olsen,  368. 

V.  Torrey,  68. 

V.  Warren,  111,  123. 
Johnson  v.  Campbell,  215. 

V.  Credit  Lyonnais,  116. 

V.  Friar,  307. 

V.  Hill.  225.  294. 

V.  Railroad  Corp.,  322,  324,  336- 
338,  360,  361,  407,  408,  464, 
466,  467,  507,  510,  511,  513, 
514,  532,  536,  541. 

V.  Reynolds,  261,  272. 

V.  Richardson,  279,  285. 

V.  Smith,  122,  172,  236. 

V,  The  McDonough,  248. 

V.  Underbill,  154. 

V.  Willey.  187. 
Johnston  v.  Browne,  8,  245. 

V.  Davis,  452. 

V.  Laflin,  127. 
Joliet  Iron  Co.  v.  Scioto  Fire  Brick  Co., 

166. 
Jones  V.  Bank,  111.  133. 

V.  Benedict,  173. 

V.  Earle,  481. 

V.  Fort,  138. 

V.  Gllmore,  362. 

V.  Hatchett,  239,  24a 

V.  Johnson,  109. 

V.  Kemp,  7. 

V.  Maxwell,  14. 


Jones  V.  Morgan,  249. 

V.   Morrill,  294. 

V.  Osbnru,  258. 

V.  Pearle,  225,  233,  234,  297. 

V.   Pitcher,  312,  552. 

V.  Rahilly,  109. 

V.   Railroad  Co.,  337,  470,  495,  499. 

V.  Scott.  119,  163,  164. 

V.  Smith,  26,  107,  132. 

V.  Thurloe,  225,  234,  296. 

V.  Thurmond's  Heirs,  132. 

V.  lYansportatioD  Co.,  462. 

V.  Tyler,  288. 

V.  Voorhees,  382,  438. 

V.  Witter,  125. 
Jordan  v.  Fall  River  R.  Co.,  383. 
Joseph  V.  Knox,  544. 
Joslyn  V.  King.  61,  71. 
Jourdan  v.  Reed,  61,  62. 
Judson  V.  Coccoran  120. 

V.  Etheridge,  223. 

V.  Railroad    Corp.,    316,    428,    440, 
445. 
Julia,  The.  313. 
June  V.  Railroad  Co..  500. 


K 


Kaiser  v.  Hoey,  430. 
Kalamazoo  Hack  &  Bus  Co.  v.  Soots- 
man.  506. 
Kallman  v.  Express  Co.,  354. 
Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Mor- 
rison, 382,  463. 
Kansas  Cit.v.  M.  &  B.  R.  Co.  v.  Higdou, 
384. 

V.  Holland,  433. 

V.  Riley,  565. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.  t. 

Simpson,  377,  425.  427. 
Kansas  Pac.  Ry.  Co.  v.  Bayles,  339. 

V.  Miller,  520,  526. 

V.  Montelle,  381. 

V.  Nichols,  371,  372. 

V.   Reynolds.  354,  370,  372,  43L 

V.  Salmon.  496. 
Kant  V.  Kessler,  7. 
Kean  v.  Railroad  Co.,  527. 
Keating  v.  Railroad  Co.,  525. 
Keeley  v.  Railway  Co.,  527. 
Keenan  v.  Southworth,  487. 
Keeney  v.  Railroad  Co.,  327, 


596 


CASKS  CITED. 


[The  figures  refer  to  pages.l 


Reiser  t.  Topping,  121. 
Kelham  v.  The  Kensington,  354. 
Kell  V.  Anderson,  334. 
Keller  v.  Railroad  Co.,  538. 

V.  Rlioades,  45. 
Kellerman  v.  Railroad  Co.,  433. 
Kellogg  V.  Fancher,  139. 

V.  Olson,  75. 

V.  Stockwell,  153. 

V.  Sweeney,  284,  285. 
Kelly  V.  Excise  Com'rs,  260. 

V.  Patchell,  34. 

V.  Railroad  Co.,  336,  338,  525. 

V.  Smith,  114. 
Kelsey  v.  Griswold,  97. 
Kelton  V.  Taylor,  68,  236,  237. 
Kember  v.  Express  Co.,  442. 
Kemp  V.  Clark,  333. 

V.  Coughtry,  323. 

V.  Falk,  148,  482. 

V.  Farlow,  61. 

V.  Westbrook,  132. 
Kendall  v.  Railway,  376. 
Kennedy  v.  Ashcraft,  27,  89,  93,  186. 

V.  Railroad  Co.,  459. 

V.  Strong,  114. 
Kennedy's  Adm'x  v.  Hammond,  160. 
Kent  V.  Railway  Co.,  470. 

V.  Shuekard,  280,  285,  287. 

V.  Westbrook,  131. 
Kentucky  Cent  R.  Co.  v.  Thomas,  514. 
Kentucky  &  I.  Bridge  Co.   v.   Louis- 
ville &  N.  R.  Co.,  314,  336. 
Keokuk  Packet  Co.  v.  True,  532. 
Ker  V.  Mountain,  504. 
Kergin  v.  Dawson,  130. 
Kerr  v.  Cowen,  142. 

V.  Willan,  414,  415,  440,  444. 
Kerrigan  v.  Railroad  Co.,  540. 
Kessler  v.  Railroad  Co.,  540. 
Kettle  V.  Bromsall,  28. 
Kiff  V.  Railroad  Co.,  368,  435. 
Killian  v.  Huffman,  168. 
Killmer  v.  Railroad  Co.,  332,  337. 
Killoran  v.  Sweet,  156. 
Kimball,  The,  349. 
Kimball  v.  Hildreth,  108,  171. 

V.  Railroad  Co.,  312,  322,  376,  438, 
552. 
Kimmar  v.  Railway  Co.,  346. 
Klnchelo  v.  Priest,  31,  45. 
Kinder  v.  Shaw,  114,  115. 
King  V.  Bates,  10,  14,  29,  57,  58,  76. 


King  V.  Bedford,  76. 

V.  Green,  110. 

V.  Humphreys,  224. 

V.  Indian  Orchard  CanaJ  Co.,  238. 

V.  Meredith,  547. 

V.  Richards,  34,  479. 

V.  Shepherd,  358,  359. 

V.  Spurr,  200. 

V.  Woodbridge,  442. 
Kingman  v.  Denison,  481. 

V.  Perkins,  125. 
Kinnear  v.  Robinson,  194. 
Kinuey  v.  Kruse,  135. 

V.  Railroad  Co.,  498,  531. 
Kinnick  v.  Railroad  Co.,  375,  876,  402^ 

408. 
KInsey  v.  Leggett,  116. 
Kinsley  v.  Railroad  Co.,  340,  395,  396, 

399,  521. 
Klrby  v.  Express  Co.,  433. 
Kirk  V.  Railway  Co.,  457. 
Kirkland  v.  Dinsmore,  441,  442. 
Kirkman  v.  Hargreaves,  553. 

V.  Shawcross,  223,  275,  347. 
Kirtland  v.  Montgomery,  45,  46,  72. 
Kissam  v.  Jones,  23,  199. 
Kisten  v.  Hildebrand,  257,  259-262,  271^ 

272,  279,  280. 
Kisterbock,  Appeal  of,  144. 
Kittera's  Estate,  150. 
Kitteridge  v.  Freeman,  233. 
Klauber  v.  Express  Co.,  359,  367. 
Kleimenhagen  v.  Railway  Co.,  527. 
Klein  v.  Jewett,  526. 
Knapp  V.  Curtis,  239. 
Knight  V.  Plimouth,  182. 

V.  Railroad  Co.,  346,  468,  525,  540. 
Knights  V.  Quarles,  561. 
Knott  V.  Railroad  Co.,  468. 
Knowing  v.  Manly,  57. 
Knowles  v.  Railroad  Co.,  61,  64,  67,  68,. 

94,  r,08,  536. 
Knowlton  v.  Railway  Co.,  530. 
Knox  V.  Rives,  322. 
Kohn  V.  Packard,  454. 

V.  Railroad  Co.,  367. 
Koon  V.  Greeman,  219. 
Kopper  V.  Willis,  258,  268-270,  274. 
Kowing  V.  Mauley,  29,  32. 
Krause  v.  Com.,  3. 
Kremer  v.  Express  Co.,  451. 
Krohn  v.  Sweeney,  259,  292. 
Krulder  v.  Ellison,  544,  546,  547. 


CASES   CITED. 


697 


[The  figures  refer  to  pages.] 


Kuehn  v.  Wilson,  237. 

Kilter  V.  Railroad  Co.,  322,  38a 

Kyle  V.  Railroad  Co.,  468. 


Labold  V.  Southern  Hotel  Ck).,  290. 
Lackawanna  &  B.  R.  Co.  v.  Chenewith, 

318,  495. 
Lackington  v.  Atherton,  482. 
Lacoste  v.  Pipkin,  22,  197. 
Lacouch  V.  Powell,  479. 
Ladue  v.  Griffith,  247. 
Lafarge  v.  Morgan,  83. 

V.  Rickert,3. 
Lafaye  v.  Harris,  549. 
Lafayette  &  I.  R.  Co.  v.  Pattlson.  331. 
Laffrey  v.  Grummond,  391. 
Laflin  &  Rand  Powder  Co.  v.  BurB- 

hardt,  109. 
Lafourche  &  T.  Nav.  Co.  v.  Collins,  41, 

44,  46. 
Lain  v.  Galther,  79,  100. 
Laing  V.  Colder,  520. 

V.  Nelson,  60. 
Laird  v.  Eichold,  279. 
Lake  Erie  &  W.  R.  Co.  v.  Acres,  502. 

V.  Fix,  512,  565,  567. 

V.  Hatch,  457. 

V.  Quisenberry,  509. 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Ben- 
nett, 364,  410. 

V.  Foster,  315,  319. 

V.  Greenwood,  440. 

V.  Hodapp,  367. 

V.  Perkins,  322.  370,  371,  434. 

V.  Rosenzweig,  494,  513. 
Lake  Superior  &  M.  R.  Co.  v.  U.  8., 

314. 
Lamb  y.  Railroad  Corp.,  81,  240,  241, 
854,  435. 

V.  Transportation  Co.,  31,  436,  468, 
551. 
Lambert  v.  Robinson,  346. 
Lamberton  v.  Wlndom,  156,  157,  166. 
Lamlne  v.  Dorrell,  91. 
Lampley  v.  Scott,  61. 
Lanaux,  Succession  of,  121. 
Lancaster  County  Nat.  Bank  v.  Smith, 

28,  30,  32.  47,  51,  61,  62. 
Lancaster  Mills  v.  Merchants'  Cotton- 
Press  Co.,  215,  239,  241. 


Londfear  v.  Blossroan,  148. 
Lane  v.  Cameron,  27,  29,  57,  93,   187. 
189,   191. 

V.  Cotton,  305,  313,  323,  486. 

V.  Pennlnian,  342. 

V.  Railroad  Co.,  24,  231,  347,  348. 
Lang  V.  New  York,  L.  E.  &  W.  R.  Co., 

209. 
Langan  v.  Railway  Co.,  526,  628, 
Langdon  v.  Buel,  108. 

V.  Robertson,  464. 
Langford  v.  U.  S.,  485. 
Langstaff  v.  Stlx,  481. 
Langworthy  v.  Railroad  Co.,  346. 
Lanier  v.  Youngblood,  282,  283,  291. 
Lapping  v.  Duffy,  173. 
Latham  v.   Chartered   Bank  of  India, 

120. 
Laugher  v.  Pointer,  205. 
Laughlin  v.  Railroad  Co.,  476,  477. 
Laurel  Fork  &  S.  H.  R.  Co.  v.  West 

Virginia  Transp.  Co..  341. 
Laussatt  v.  Lippincott,  115. 
Laveroni  v.  Drury,  240. 
Lawrence  v.  Clark,  138. 

V.  Howard,  272,  297,  300. 

V.  McCalmont,  128,  157. 

V.  McGregor,  361. 

V.  Maxwell,  152,  165. 

V.  Minturn,  333,  546. 

V.  Railroad  Co.,  465,  468. 
Lawsnn  v.  Railway  Co.,  493,  530. 
Lay's  Ex'r  v.  Lawson's  Adm'r,  89,  98. 
Lea  V.  Baldwin,  157. 
Leach  v.  French,  201. 
Learned  v.  Bryant,  21,  23. 
Leas  V.  James,  109. 
Leask  v.  Scott,  482. 
Leavenworth  Co.  v.  Miller,  871. 
Leavenworth,  L.  &  G.  R.  Co.  v.  Marls, 

456. 
Leavy  v.  Kinsella,  14. 
Le  Barron  v.  Ferry  Ca,  311,  49L 
Le  Blanche  v.  Railway  Co.,  565. 
Leek  V.  Maestaer,  236. 
Lecky  v.  McDermott.  350. 
Le  Conteur  v.  Railroad  Co.,  896. 
Ledyard  v.  Hibbard,  8.  246. 
Lee,  The  R.  E.,  396,  89a 
Lee  V.  Adsit,  215. 

V.  Atkinson,  196. 

▼.  Baldwin.  12a 

V.  Bowen,  147. 


6y8 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Lee  V.  Gould,  232. 

V.  Kimball,  482. 
Lee  &  Grissel's  Case,  258. 
Leech  v.  Baldwin,  349. 
Leeson  v.  Holt,  414,  438. 
Leet  V.  Wadsworth,  114- 
Legg  V.  Willard,  164. 
Lehman  v.  Tallassee  Manuf  g  Co.,  20, 

110. 
Leigh  V.  Smith,  319. 
Leighton  v.  Burkham,  160. 
Leitch  V.  Wells,  117. 
Lemke  v.  Railway  Co.,  457,  45a 
Lemon  v.  Chanslor,  310. 
Lempriere  v.  Paisley,  349. 
Lenckhart  v.  Cooper,  222,  24& 
Lent  V.  Railroad  Co.,  501. 
Leonard  v.  Hendrickson,  313. 

V.  Kebler's  Adm'r,  111. 

V.  Tidd,  33. 
Leonard's  Ex'rs  v.  Winslow,  347. 
LeoncinI  v.  Post,  241. 
Le  Sage  v.  Railroad  Co.,  361. 
Lesassier  v.  The  Southwestern,  482. 
Lesinsky  v.  Dispatch  Co.,  466. 
Lester  v.  McDowell.  60. 

V.  Railroad  Co.,  480. 
Lethbridge  v.  Phillips,  43,  61. 
Lett  V.  Cawley.  481. 
Levering  v.  Union  Transp.  Co.,  433. 
Levy  V.  Bergeron,  24. 

V.  Express  Co.,  435. 
Lewis,  Ex  parte.  222.  248. 

V.  Canal  Co.,  494. 

V.  Car  Co.,  202,  312,  400. 

V.  Carsaw,  22. 

V.  Hitchcock,  258. 

V.  Ludwick,  364,  365. 

V.  McAfee,  193. 

V.  Mott,  134,  175. 

V.  Railroad  Co.,  429,  430,  513,  538, 
553. 

V.  Smith,  311. 

V.  Stevenson,  107. 

V,  Tyler,  222. 

V.  Vamum,   108. 
Lexington  &  O.  R.  Oo.  v.  Kldd,  197. 
L'Herbette  v.  Plttsfield  Nat  Bank,  49. 
Llbby  V.  Ingalls,  452,  553. 
Llchtenheln  v.  Boston  &  P.  R.  Co.,  29, 

32,  241,  243. 
Lickbarrow  v.   Mason,   107,   233,   346, 
350. 


Lillis  V.  Railway  Co.,  495,  533,  535,  53»l 
Lima  V.  Dwinelle,  271. 
Limburger  v.  Westcott,  443. 
Lin  V.  Railroad  Co.,  476. 
Lincoln,  The  City  of,  456. 
Lindley  v.  Railroad  Co.,  468. 
Lindsley  v.  Railroad  Co.,  352,  375. 
Line  v.  Dater,  469. 

V.  Mills.  29. 
Linningdale  v.  Livingston,  220,  22L 
Liscomb  v.  Transportation  Co.,  525. 
Litchfield  Bank,  In  re,  166. 
Little  V.  Fossett,  91,  412. 

V.  Hackett,  524,  528. 

V.  Railroad  Co.,  69,  415,  43a 
Littlejohn  v.  Jones,  308,  311. 

V.  Railroad  Co.,  497. 
Little  Miami  R.  Co.  v.  Washburn,  465. 
Littler  v.  Holland,  220. 
Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Cor- 
coran, 354. 

V.  Harper,  354. 

V.  Talbot,  415,  433. 
Little  Rock  &  F.  S.  R.  Co.  v.  Dean,  514. 
Lively,  The,  182. 
Liver  Alkali  Co.  v.  Johnson,  312. 
Liverpool  &  G.  W.  Steam  Co.  v.  Insur- 
ance  Co.   of   North   America, 
434. 

V.  Phenix  Ins.  Co.,  310,  416,  424. 

V.  Suitter,  454. 
Livingston  v.  Railroad  Co.,  410. 
Livingston's  Ex'x  v.  Story,  151. 
Lloyd  V.  Bank,  14,  20,  48,  49. 

V.  Barden,  13,  18,  19. 

V.  Johnson,  266. 
Lobenstein  v.  Pritchett,  44,  45,  61. 
Lockhart  v.  Llchtenthaler,  495. 

v.  Railroad,  91,  549. 
Lockwood  V.  Bull,  57,  186. 
Loeb  V.  Peters,  480,  482. 
Loeschman  v.  Machin,  187. 
Log,  etc.,  R.  Co.  v.  Jenkins,  347, 
Logan  v.  Mathews,  31,  92. 

V.  Railroad  Co.,  391,  567. 
Logwood  V.  Railroad  Co.,  506. 
London  &  L.  Fire  Ins.  Co.  v.  Rome, 

W.  &  O.  R.  Co.,  314. 
London  &  N.  W.  R.  Co.  v.  Bai-tlett,  816. 

V.  Dunham,  438. 

V.  Evershed,  331,  332. 
Lonergan  v.  Stewart,  8,  82. 
Long  V.  Bledsoe,  21. 


CASES  CITED. 


599 


[The  figures  refer  to  papes.] 


Long  V.  Home,  816. 

V.  Railroad  Co.,  363,  553. 
Longman  v.  Oallnl,  208. 
Look  V.  Comstock,  171. 
Loomls  V.  Railway  Co.,  472. 

V.  Stave,  11,  120,  160,  167. 
Lord  V.  Collins,  230. 
Lorlng  V.  Mulcahy,  33. 
Loss  V.  Fry,  227. 
Lotan  V.  Cross,  21,  91. 
Louf,'h  V.  Outerbridge,  336. 
Loiisbborough   v.   McNevln,   129,    175, 

176. 
Louisville,  C.  &  L.  R.  Co.  v.  Hedger, 
370,  415. 

V.  Maban,  462. 

V.  Sullivan,  536. 
Louisville,  E.  &  St.  L.  Oonsol,  R.  Co.  v. 

Wilson.  338,  340. 
Louisville,  E.  &  St.  L.  R.  Co.  v,  Wil- 
son, 331,  437. 
Louisville,  N.  A.  &  O.  Ry.  Co.  v.  Cook, 
537. 

T.  Flanagan,  323. 

V.  Lucas,  537. 

V.  Thompson,  526. 

V.  Wolfe,  536. 
Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Big- 
ger, 369,  375. 

V.  Mask,  538. 

V.  Patterson,  504. 
Louisville,  N.  &  G.  S.  R.  Co.  v.  Flem- 
ing, 528. 

V.  Harris,  513,  534. 

V.  Katzenberger,  394. 
Ixiuisville,  St.  L.  &  T.  R.  Co.  v.  Bourne, 

406. 
Louisville  &  N.  R.  Co.  v.  Ballard,  523. 

V.  Brownlee,  415. 

V.  Campbell.  4GG,  469,  473. 

V.  Ellis,  536. 

V.  Gilmer,  459. 

V.  Hailey,  492. 

V.  Jones,  476. 

V.  Lawson,  553. 

V.  Manchester  Mills,  355. 

V.  Mason,  557. 

V.  Meyer,  469. 

V.  Oden,  432,  456. 

V.  Touart,  410. 

V.  Wynn,  352.  425.  426. 
Lovejoy  v.  Jones.  187. 
Loveland  v.  Burke,  367,  44a 


Lovelock  V.  King,  221. 

Loverldge  v.  Cooper,  125. 

Loverlng  v.  Coal  Co..  362. 

Lovott  V.  Ilobbs,  491. 

Low  V.  Martin,  222. 

Lowell  Wire  Fence  Co.  v.  Sargent,  810, 

468. 
Lubbock  V.  Inglis,  29,  477. 
Lucas  V.  Railroad  Co.,  492,  528. 

V.  Trumbull,  187,  191,  194. 
Lucena  v.  Craufurd.  252. 
Lucketts  V.  Towusend,  108,  133,  184, 

166.  167. 
Ludden  v.  Leavitt,  13,  196. 
Lundy  v.  Railroad  Co.,  513. 
Luut  V.  Brown,  22. 
Lusk  V.  Belote,  272. 
Lygo  V.  Newbokl,  495. 
Lyle  V.  Barker,  151,  158. 

V.  Perry,  96. 
Lyuar  v.  Mossop,  268. 
Lynch  v.  Railroad  Co.,  508. 
Lynn  v.  Southern  Pac.  Co.,  522. 
Lynx  v.  King,  402. 
Lyon  V.  E  wings.  136. 

V.  Huntingdon  Bank,  156,  167. 

V.  Lenon,  7,  245. 

V.  Smith,  260. 
Lyons  v.  Hill,  452. 

M 

McAdoo  V.  Richmoud  &  D.  R.  Co.,  23, 

25. 
McAlister  v.  Railroad  Co.,  368. 
McAndrew  v.  Whitlock,  454—456. 
McArthur  v.  Ilowett,  151. 

V.  Sears,  357.  358. 
McAvoy  V.  Medina,  58. 
McBeath  v.  Railroad  Co.,  367. 
McCabe  v.  McKiustry.  7. 
McCafferty  v.  Brady.  243. 
McCalla  v.  Clark.  154.  175. 
McCants  v.  Wells.  146. 
McCarthy  v.  Railroad  Co.,  367,  472. 

V.  Wolfe,  31,  250. 

V.  Young,  88. 
McCarty  v.  Railroad  Co.,  460. 
McCauley  v.  Davidson,  15.  41,  51,  546. 
McClary  v.  Railroad  Co.,  361. 
McClenaglian  v.  Brock.  353. 
McClintock  v.  Central  Bank,  126,  131, 
166. 


600 


CASES   CITED. 


[The  figures  refer  to  pages.] 


McCIure  v.  Railroad  Co.,  512,  533,  535. 
McClures  v.  Hammond,  305,  550. 
McCombie  v.  Davies,  106,  114,  115,  134, 
198. 

V,  Spader,  150. 
McConnell  v.  Railroad  Co.,  468. 
McCormicls  v.  Hudson  R.  Co.,  382. 
McCourt  V.  Railroad  Co.,  317. 
McCoy  V.  Hock,  250. 

V.  Railroad  Co.,  375. 

V.  Transportation  Co.,  415. 
McCready  v.  Haslock,  13,  18,  108,  122. 
McCreary  v.  Gaines,  114,  115. 
McCrow  V.  Railroad  Co.,  883. 
McCullocti  V.   McDonald,   473. 

V.  Railroad  Co.,  314,  404. 
McCullom  V.  Porter,  31,  236,  239,  241. 
McCune  v.  Railroad  Co.,  377. 
McDaxiiel  v.  Railroad  Co.,  376,  434. 
McDaniels  v.  Robinson,  31,  269,  270, 

271,  273,  278,  279,  2S4,  298. 
McDearmid  v.  Foster,  234. 
McDonald  v.  Bennett,  223. 

V.  Edgerton,  268,  269,  274,  280,  287, 
298. 

y.  Railroad    Corp.,    457,    466,    467, 
500. 
McDonough  v.  Railroad  Go.,  500. 
McDougall  V.  Crapon,  233,  234. 
McDowell  V.  Chicago  Steel  Works,  167. 
McDuffee  v.  Railroad  Co.,  322,  327,  328, 

335-337,  507. 
McElroy  v.  Railroad  Corp.  491. 
McEntee  v.  Steamboat  Co.,  477. 
McEvers  v.  The  Sangamon,  203. 
McEwen  v.  Railroad  Co.,  478. 
McFadden  v.   Railroad  Co.,  375,  404, 

415.  426,  429,  432. 
McFarland  v.  Smith,  22. 

V.  Wheeler,  171,  231. 
McFetridge  v.  Piper,  480,  481. 
McGaw  V.  Insurance  Co.,  332. 
McGee  v.  Bast,  55. 
McGhee  v.  Edwards,  227. 
McGill  V.  Monette,  197. 

V.  Rowand,  309,  382. 
McGinn  v.  Butler,  24,  32,  237. 
McGraw  v.  Railroad  Co.,  362,  409. 
McGregor  v.  Kilgore,  312. 

V.  Railway  Co.,  331. 
McHenry  v.  Railroad  Co.,  310. 

V.  Ridgely,  19. 
Machin  v.  Railroad  Co.,  317. 


Machinists'  Nat.  Bank  y.  Field,  144. 

Mcllvane  v.  Hilton,  295. 

Mclntire  Ry.  Co.  v.  Bolten,  532. 

Mclntyre  y.  Carver,  222,  225. 

Mack  V.  Snell,  7. 

McKay  v.  Hamblin,  8,  61,  67. 

V.  Railroad  Co.,  434,  511,  565,  567. 
Mackbee  v.  Griffith,  206. 
McKean  v.  Mclvor,  478. 
McKee  v.  ,Tudd,  131. 

V.  Owen,  276,  394. 
McKenzie  v.  Nevins,  232. 
McKinlay  v.  Morrish,  546. 
McKinley  v.  Railroad  Co.,  524. 
McKiuuey  v.  Jewett,  457. 
Macklin  v.  Frazier,  18,  20. 

V.  Steamboat  Co.,  394,  395,  398. 
McKuight  V.  Knisely,  137,  139. 
McKone  v.  Railroad  Co.,  528. 
McLain  v.  Huffman,  75. 
McLauchlin  v.  Lomas,  186. 
McLaughlin  v.  Waite,  57. 
McLean,  v.  Burbank,  519. 

V.  Rutherford,  01. 

V,  Walker,  11,  107,  119. 
McLughan  v.  Bovard,  157. 
McMahon  v.  Field,  563. 

V.  Sloan.  29,  76,  93,  97. 
McMaster  v.  Merrick,  232. 
McMasters  v.  Railroad  Co.,  455,  459. 
McMillan    v.    Railroad    Co.,   431,   438, 
439,  442,  445,  468. 

V.  Vanderlip,  218,  219. 
McNabb  v.  Lockhart,  61. 
McNeil  V.  Tenth  Nat.   Bank  of  New 

York,  126,  142,  144,  160. 
McNeill  V.  Brooks.  186,  190,  191,  202. 
McNulta  V.  Ensch,  538. 
Macomber  v.  Parker,  11,  12,  111,  119, 

123,  172. 
McPadden  v.  Railroad  Co.,  521,  526. 
MacRae  v.  Railroad  Co.,  513. 
Macrow  v.  Railway  Co.,  311,  381. 
McVeety  v.  Railway  Co.,  495. 
Madan  v.  Sherard,  444. 
Madison,  I.  &  P.  R.  Co.  v.  Whitesel, 

546. 
Magdeburg  General  Ins.  Co.  y.  Paul- 
son, 557. 
Magee  v.  Pacific  Imp.  Co.,  267. 

V.  Scott.  75. 
Maghee  v.  Camdeu  &  A.  R.  Transp.  CJo., 
360. 


CASES  CITED. 


601 


[The  figures  refer  to  pr.pes.] 


Maghee  v.  Railroad  CJo.,  407,  435. 
Magnln   v.    Dinsmore,    366,    421,    427, 

429,  483,  442,  446,  557. 
Magruder  v.  Colston,  154. 
Maboney  v.  Caperton,  112. 
Malgnan  v.  Railroad  Co.,  458. 
Malrs  V.  Taylor,  128,  199. 
Maitland  v.  Citizens'  Nat.  Bank,  141. 
Majestic,  The,  414,  447. 
Malaney  v.  Taft,  31. 
Mallach  v.  Ridley,  207. 
Mallory  v.  Burrett,  345. 

V.  Railroad  Co.,  312. 

V.  Willis,  7. 
Malone  v.  Robinson,  191,  193. 
Maltby  v.  Chapman,  292. 
Man  V.  Shiffner,  198. 
Mangalore,  The,  557. 
Manhattan  Bank  v.  Walker,  32. 
Manhattan  Oil  Co.  v.  Camden,  etc.,  R. 

Co.,  435. 
Manhattan  Trust  Co.  v.  Sioux  City  & 

N.  R.  Co.,  171. 
Mann  v.  Birchard,  416. 

V.  Booming  Co.,  314 
Manning  v.  Hollenbeck,  293,  2^\,  296. 

V.  McClure,  137. 

V.  Shriver,  168. 

V.  Wells,  261.  267,  272,  280 
Mansfield  v.  Converse,  7, 
Maplus  V.  Railroad  Co.,  50P. 
Marben-y   v.   Farmers'   &   Mechanics' 

Nat.  Bank,  164. 
Margaret,  The,  313 
Maria,  The,  182. 

Marine  Bank  of  Chicago  v.  Wright,  148. 
Mariner  v.  Smith,  15,  44,  45. 
Marion  v.  Railroad  Co..  524. 
Mark  v.  Railway  Co.,  529. 
Markham  v.  Brown,  275-277,  297. 
Marner  v.  Bankes,  187. 
Marquette  v.  Railroad  Co  ,  507. 
Marsh  v.  Benton  Co.,  26. 

V.  Home,  92. 

V.  Lawrence,   130. 

V.  Railway  Co.,  344-346,  558. 

V.  Titus,  7. 
Marshall  v.  Express  Co.,  449,  450. 

V.  Otto,  164. 

V.  Railroad  Co.,  353,  369,  402,  494, 
555. 
Martin,  The  D.  R.,  503-505. 
Martin  v.  Cuthbertson,  29,  89,  93,  186. 


Martin  v.  Express  Co.,  436. 

V.   Railway  Co.,  405,  525. 

V.  Reid,  172. 
Martini  v.  Coles,  114,  115. 
Marvin  v.  Ellwood,  22,  33. 
Marx  V.  Steamship  Co.,  483. 
MaiT  and  Susan,  The,  548. 
Marj-  Ann,  Tlie,  313. 
Maryland  Fire  Ins.  Co.  v.  Dalrymple, 

165,  167,  168. 
Mascotte,  The,  452. 
Mashiter  v.  Buller,  342. 
Maslin  v.  Railroad  Co.,  416. 
Mason  v.  Briggs,  SO,  99. 

V.  Grafton,  260. 

V.  Liokbarrow,  120. 

V.  Railroad  Co.,  404. 

V.  Thompson,    270.    271,    280,    283, 
284.  287. 
Mateer  v.  Brown.  257,  280,  281,  286. 
Mather  v.  Express  Co.,  69,  424. 
Mathias  v.  Sellers,  222.  2.'i0. 
Matthews  v.  Albert,  155. 

V.  Rutherford,  142. 
Mattison  v.  Railroad  Co.,  463. 
Mauge  v.  Heriughi,  164. 
INIauney  v.  Ingram,  223. 
Maurau  v.  Insurance  Co.,  365. 
Mauritz  v.  Railroad  Co.,  381,  443. 
Maury  v.  Coyle,  47. 
Maving  v.  Todd.  414,  415,  438. 
Maxwell  v.  Gerard.  298. 

V.  Houston,  22,  34. 

V.   M'llvoy,  485. 
May  V.  Hanson.  311. 
Mayberry  v.  Morris,  139. 
May  bin  v.  Railroad  Co.,  246,  308. 
Mayer  v.  Heidelbach,  139. 
Mayhew  v.  Boyce,  518. 
Mayuard  v.  Buck,  250. 

V.  Railroad  Co.,  375. 
Mayo  V.  Moore,  158. 
Mayor   and   Council   of   Columbus   t. 

Howard,  193. 
Mead  v.  Bunn,  109,  110. 

V.  Railway   Co.,   544,  548. 
Meadow  v.  Bird,  137. 
Meadows,  In  re,  112. 
Mears  v.  London  &  S.  W.  Ry.  Co.,  197. 

v.  Waples,  148. 
Mechanics'  Bank  v.  New  York  &  N. 
H,  R.  Co.,  144- 


602 


CASES  CITED 


[The  figures  refer  to  pagres.l 


Mechanics'  Building  &  Loan  Ass'n  of 

New  Brunswicli  v.  Conover,  130. 
Mechanics'  Trader's'   Bank  v.  Living- 
ston, 111. 
Mechanics'  &   Farmers'   Bank  of   Al- 
bany V.  Wixson,  140. 
Mechanics'   &  Traders'  Bank  v.  Gor- 
don, 46,  61. 
Medeiros  v.  Hill,  411. 
Meech  v.  Smith,  19,  20. 
Meeks  v.  Railroad  Co.,  527. 
Meier  v.  Railroad  Co.,  522,  526. 
Memphis  &  C.  R.  Co.  v.  Benson,  504, 
507. 
V.  Reeves,  355,  526. 
V.  Whitfield,  525. 
Memphis  &  L.  R.   Ry.  Co.  v.   String- 
fellow,  538. 
Memphis  &  O.  R.   P.  Co.  v.  McCool, 

526. 
Menacho  v.  Ward,  322,  336,  338. 
Menetone  v.  Athawes,  203,  216,  218. 
Men^ell  v.  Railroad  Co.,  434. 
Mercantile  Ins.  Co.  v.  Calebs,  413. 
Mercantile  Mut.  Ins.  Co.  v.  Chase,  471. 
Merchants'    Bank   v.    State   Bank,    19, 

134. 
Merchants'  Banking  Co.  of  London  v. 

Phoenix  Bessemer  Steel  Co.,  143. 
Merchants'  Despatch  Co.  v.  Smith.  546. 
Merchants'    Dispatch    Transp.    Co.    v. 
Bloch,  310,  416. 
V.  Bolles,  430. 
V.  Furthmann,  441. 
V.  Hallock,  449,  459. 
V.  Kahn,  360. 
V.  Leysor,  442. 
Merchants'  Dispatch  &  Transp.  Co.  v. 
Cornforth,  402,  404,  415. 
V.  MeiTiam,  478. 
Merchants'  Nat.  Bank  v.  Demere,  111. 
V.  Guilmartin,  64- 
V.  Hall,  111. 
V.  Richards,  153. 
V.  Thompson,  166. 
V.  Trenholm,  114,  115. 
Meredith  v.  Reed,  23. 
Merian  v.  Funck,  333. 
Merriam  v.  Railroad  Co.,  314,  819,  320. 
Merrick,  In  re,  2.'{3. 
V.  Brainard,  313^ 
V.  Webster,  407. 
Merrifield  v.  Baker,  152,  153,  173. 


Merrill,  In  re,  495,  528. 

V.  Grinnell,  378,  379,  383. 

V.  Houghton,  132. 
Merritt  v.  Claghorn,  278-280. 

V.  Earle,  351,  357,  358,  363. 

V.  Old  Colony  &  N.  R.  Co.,  244,  247 
Merry  v.  Green,  13. 
Mershon  v.  Hobensack,  305,  364,  502, 

552. 
Merwin  v.  Butler,  323,  450,  456. 
Messenger  v.   Railroad  Co.,  327,  335- 

337,  340,  341. 
Metcalf  V.  Hess,  279,  281. 
Metz  V.  California  South.  R.  Co.,  382, 

384. 
Meuer  v.  Railroad  Co.,  421. 
Meux  V.  Bell,  125. 

V.  Railroad  Co.,  381. 
Mexal  V.  Dearborn,  233. 
Mexican  Cent.  Ry.  Co.  v.  Lauricella, 

522. 
Meyer  v.  Lemcke,  451. 

V.  Railway  Co.,  522. 
Meyerstein  v.  Barber,  107,  148. 
Miami  Powder  Co.  v.  Port  Royal  &  W. 

C.  Ry.  Co.,  349. 
Michaels  v.  Railroad  Co.,  358,  362. 
^Michigan  Bank  v.  Eldred,  136. 
Michigan  Cent.  R.  Co.  v.  Boyd,  441. 

V.  Burrows,  361,  402,  408-410. 

V.  Carrow,  14,  383,  387,  388. 

V.  Coleman,  23. 

V.  Curtis,  302. 

V.  Hale.  415,  438,  440,  442. 

V.  Mineral    Springs    Manuf'g    Co., 
442.  457. 

V.  Myrick.  375. 

V.  Phillips,  117,  123,  127,  146. 

V.  Ward.  415. 
Michigan   S.  &  N.  L  R.  Co.  v.  Day,  409, 
447. 

V.  McDonough,  370,  371,  555. 

V.  Oelim.  389. 

V.  Shurtz,  314,  315. 
Middleton  v.  Fowler,  309,  377. 

V.  Stone,  9. 
Midland  Co.  v.  Huchberger,  112. 
Midland  R.  Co.  v.  Bromley,  31,  555. 
Mierson  v.  Hope,  368. 
Millard  v.  Missouri,  K.  &  T.  R.  Co.,  385. 

V.  Webster,  480. 
Millen  v.  Hawery,  44. 
Miller  v.  Gettysburg  Bank,  156, 


CASES   CITED. 


603 


[The  figures  refer  to  pages.l 


Miller  v.  Mansfield,  459. 

V.  Marston,  222,  223,  230,  250. 

V.  Navigation  Co.,  310,  363. 

V.  Peeples,  297,  298,  300. 

V.  Pendleton,  311. 

V.  Pollock,  136. 

V.  Railway  Co.,  537. 

V.  Schneider,  114. 
Mllligan  v.  Wedge,  205. 
Milliken  v.  Dehon,  109,  166,  167. 
Milllkin  v.  Jones,  223. 
MUllman  v.  Neher,  121. 

V.  Railroad  Co.,  503. 
Millon  V.  Salisbury,  201,  203,  204,  209. 
Mills  V.  Gilbreth,  27. 

V.  Graliain.  15,  17,  43. 

V.  Railroad  Co.,  457,  405. 
Milne  v.  Douglass,  470. 
Miltimore  v.  Railroad  Co.,  362,  367. 
Milwaukee  &  St.  P.  R.  Co.  v.  Arms,  25. 

V.  Kellogg,  359. 
Minett  v.  Forrester,  77. 
Mlnock  V.  Railway  Co.,  522. 
Minor  v.  Staples,  287,  289. 
Minter  v.  Railroad  Co.,  386,  435. 
Mississippi  Cent.  R.  Co.  v.  Fort,  551. 
Mississippi  &  T.  R.  Co.  v.  Gill,  538. 
Missouri  Coal  &  Oil  Co.  v.  Hannibal  & 

St.  J.  R.  Co.,  318. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Carter, 
431,  441. 

V.  Kendrick,  539. 

V.  Miller,  528. 

V.  Woods,  404. 
Missouri  Pac.  R.  Co.  v.  Breeding,  476. 

V.  China  Mauuf  g  Co.,  355. 

V.  Fagan,  377,  403,  432. 

V.  Hall,  109. 

V.  Hanis.  431. 

V.  Levi,  410. 

V.  McFadden,  318. 

V.  Nevill,  364,  365,  456. 

V.  Smith,  544. 

V.  Vandeveutor,  425. 

V.  Wichita  Wholesale  Grocery  Co., 
456,  464. 
Missouri  Steamship  Co.,  In  re,  434. 
Mitchell  v.  Brown,  150. 

V.  Express  Co.,  355. 

V.  Marker,  519. 

V.  Railway  Co.,  457,  459. 

V.  Roberts.  175. 

V.  Tarbutt,  552. 


Mitchell  V.  Woods,  283. 

Miter  V.  Pacific  R.  Co.,  382. 

Mitten  v.  Faudrye,  44. 

Mix  V.  National  Bank  of  Bloomlngton, 

139. 
Mobile  &  G.  R.  Co.  v.  Copeland,  469. 
Mobile  &  M.  R.  Co.  v.  Steiner,  331. 
Mobile  &  O.  R.  Co.  v.  Hopkins,  425. 
531. 

V.  McArthur,  537, 

V.  Thomas,  521. 

v.  Tupelo  Furniture  Manuf'g  Co., 
476. 
Moet  v.  Pickering,  231. 
Moffat  V.  Williams,  166. 
Mohawk,  The,  304. 
Mohr  V.  Railroad  Co.,  459. 
Moneypeuny  v.  Hartlaud,  237. 
Monjo  v.  French,  9. 
Montana  U.  Ry.  Co.  v.  Langlols,  506. 
Monteith  v.  Bissell,  61,  64. 
Montgomery  v.  Evans,  39,  75. 

v.  The  Port  Adelaide,  452. 
Montgomery  &  E.  Ry.  Co.  v.  Kolb,  320. 
Montgomery  &  W.  P.  R.  Co.  v.  Moore, 

473,  475. 
Moody    V.    Five    Hundred    Thousand 

Laths,  347. 
Mooers  v.  Larry,  94,  203. 
Mooney  v.  ]\Iusser,  231. 
iNIoore  v.  Evans,  421. 

V.  Henry,  472. 

V.  Long  Beach  Development,  300. 

V.  Mayor,  etc.,  of  Mobile,  24U. 

V.  Metropolitan    Nat.    Bank,    142, 
143. 

V.  Miller,  144. 

V.  IMourgue,  204,  238. 

V.  Railroad  Co.,  363. 

V.  Ryder,  338. 

V.  Westervelt,  46,  93. 

V.  Wilson,  544. 
Moran  v.  Packet  Co.,  549. 
Morehead  v.  Brown,  24t). 
Moreland  v.  Railroad  Corp.,  525. 
Mores  v.  Couliam,  58. 
Morgan  v.  Congdon,  222,  224.  230. 

V.  Dibble.  359. 

V.  Dod.  109. 

V.  Ravey,  280,  283. 
Moriarty  v.  Brooks,  276,  297. 
Morley  v.  Hay,  343,  481. 
Moruingslar  v.  Cunningham,  246. 


604 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Morrill  v.  Merrill,  233. 
Morris  v.  Caldwell,  82, 

V.  Preston,  125. 
Morris  Canal  &  Banking  Co.  v.  Fisher, 
120,  166. 

V.  Lewis,  166. 
Morrissey  v.  Ferry  Co.,  527. 
Morrison  v.  Ashbum,  79. 

V.  Davis,  359,  361,  362. 

V.  Orr,  54. 

V.  Railway  Co.,  527. 

V,  Steamship  Co.,  557. 
Morris  &  E.  R.  Co.  v.  Ayres,  460. 
Mors  V.  Since,  550. 
Morse  v.  Androscoggin  R.  Co.,  214. 

V.  Crawford,  253. 

V.  Pesant,  334. 

V.  Slue,  364. 
Morss  V.  Stone,  5. 
Morton  v.  Gloster,  191. 
Moses  V.  Railroad  Co.,  311, 315, 345, 415, 
427,  438,  446,  447,  456,  458,  459. 

V.  St.  Paul,  132. 
Mosgrave  v.  Agden,  68. 
MosLer  v.  Express  Co.,  469. 

V.  Railroad  Co.,  511,  513. 
Moss  v.  Bettis,  306,  307. 

V.  Railroad  Co.,  354. 
Mosser's  Estate,  In  re,  112. 
Mote  V.  Railroad  Co.,  463. 
Mott  V.  Pettit,  16,  33. 
Mottram  v.  Heyer,  482. 
Moulton  V.  Greene,  230,  231. 

V.  Phillips,  239. 

V.  Railway  Co.,  375,  377,  425. 
Mount  V.  Williams,  232. 
Mt.  Holly,  L.  &  M.  Turnpike  Co.  v. 

Ferree,  145. 
Mt.  Vernon  Co.  v.  Railroad  Co.,  315. 
Mowers  v.  Fethers,  266,  280,  285,  287, 

300. 
Mowrey  v.  Walsh,  118. 
Mowry  v.  Wood,  120. 
Muckle  V.  Railway  Co.,  512. 
Mudgett  V.   Steamboat  Co.,  894,  895, 

398. 
Mueller  v.  Nichols,  164. 
Muggridge  V.  Eveleth,  22. 
Muirhead  v.  Kirkpatrick,  156,  157. 
Muldrow  V.  Railway  Co.,  211. 
Mulhado  v.  Railroad  Co.,  538. 
Mullen  V.  Morris,  158. 
Muller  V.  Pondir,  121,  480. 


Mulligan  v.  Railway  Co.,  441,  469,  470, 

472. 
Mulliner  v.  Florence,  234,  295. 
Munn  V.  Baker,  414,  433,  440. 

V.  Illinois,  331,  341. 

V.  McDonald,  136. 
Munster  v.  Railway  Co.,  325. 
Murch  V.  Railroad  Corp.,  490,  492. 
Murchison  v.  Sergent,  283,  290,  292. 
Murdock  v.  Columbus  Ins.  Co.,  109. 

V.  Railroad  Co.,  512,  563,  565. 
Murdock   Parlor  Grate   Co.   v.   Com., 

485. 
Mure,  Ex  parte,  157. 
Murphy  v.  Kaufman,  191. 

V.  Lippe,  232. 

V.  Railroad  Co.,  506,  533. 
Murray  v.  Burling,  89. 

V.  Clarke,  298,  300. 

V.  Mai-shall,  293,  298-300. 

V.  Warner,  451,  549. 
Muschamp  v.  Lancaster  &  P.  J.  Ry. 

Co.,  468. 
Muschamp's  Case,  555. 
Mutual  Life  Ins.  Co.  of  New  York  v. 

Hunt,   16. 
Myers  v.  Cottrill,  287,  300. 

V.  Uptegrove,  230,  231. 

V.  Walker,  239. 
Mykleby  v.  Railway  Co.,  536. 
Mynard  v.  Railroad  Co.,  421,  434,  456. 
Myrick  v.  Railroad  Co.,  464,  468,  470, 

472. 
Mytton  V.  Cock,  26. 

V.  Railroad  Co.,  469,  540. 


N 


Najac  V.  Railroad  Co.,  540. 

Nauson  v.  Jacob,  464. 

Naples  V.  Medlin,  146. 

Nash  V.  Mosher,  198. 

Nashua  Lock  Co.  v.  Worcester  &  N.  R. 

Co.,  469,  472. 
Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Heg- 

gle,  403. 
Nashville  &  C.  R.  Co.  v.  Carroll,  528. 

V.  David  359,  362. 

V.  Estes,  365,  368. 

V.  Messino,  490,  491,  504,  505. 

V.  Sprayberry,  540,  541. 
Nashville  &  D.  R.  Co.  v.  Jones,  52L 


CASES   CITED. 


605 


[The  figures  refi-r  to  papos.] 


Natchez  Ins.  Co.  v.  Stanton,  360. 
National  Bank  v.  Case,  154. 

V.  Graham,  49. 
National   Bank  of  Commerce   v.   Chi- 
cago, B.  &  N.  R.  Co.,  316. 
V.  Merchants'  Nat  Bank,  148. 
National   Bank  of   North   America   v. 

Klrby,  142. 
National  Bank  of  Pulaski  v.  Winston, 

131,  134. 
National  Butchers'   &   Drovers'   Bank 

V.  Ilubbell,  236. 
Naugatuck  R.  Co.  v.  Waterbury  But- 
ton Co.,  467,  468. 
Naylor  v.  Mangles,  231. 
Neaffie,  The,  313. 
Neal  V.  Railroad  Co.,  451,  460. 

V.  Wilcox,  267,   272,  277,  300. 
Needles  v.  Howard,  277,  285,  300. 
Neel  V.  State,  85. 
Neff  V.  Thompson,  96. 
Negus  V.  Simpson,  30,  253. 
Neish  V.  Graham,  349. 
Nelson  v.  Brown,  8,  245,  246. 
V.  Eaton,   135,   165. 
V.  Edwards,  165. 
V.  Iverson,  33. 
V.  Macintosh,  27. 

V.  Railroad  Co.,  316,  432,  433,  441. 
V.  WeUington,    165,    169. 
V.  Whetmore,  192. 
Neponset  Bank  v.  Leland,  112. 
Nesbite  v.  Luskington,  365. 
Ness  V.  Stephenson,  266. 
Nevan  v.  Roup,  121,  123,  230,  233. 
Nevin  v.  Pullman  Palace-Car  Co.,  262, 

506. 
Nevins  v.   Bay   State   Steamboat  Co., 

383,  384,  510. 
i>Iewberry  v.  Detroit  &  L.  S.  Iron  Man- 

uf  g  Co.,  145. 
Newbold  v.  Wright,  114. 
New  Brunswick  Steamboat,  etc.,  Co.  v. 

Tiers,  358,  363,  364. 
Newcomb  v.  Cabell,  123,  149. 
Newcomb-Buchanau    Co.    v.    Baskett, 

160. 
Newell  V.  Smith,  442. 
New  England,  The,  517.  565. 
New  England  Exp.  Co.  v.  Railroad  Co., 

327,  328,  335. 
Newhall,  Ex  parte,  77. 

V.  Paige,  3,  13,  15,  16,  44,  45. 


Newhall  v.  Railroad  Co.,  482. 
V.  Vargas,  343,  480  482. 
New    Haven    &    Northampton    Co.    v. 

Campbell,  230,  347,  348. 
New  Jersey  Steamboat  Oo.  v.  Brockett, 

536. 
New  Jersey  Steam   Nav.  Co.   v.   Mer- 
chants' Bank,  322,  364,  416,  438,  439, 
446,  455,  503,  547. 
Now*  .lei-sey  Traction  Co.  v.  Danbech, 

498. 
New  Orleans,  The,  407. 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Bai- 
ley,   529. 
V.  Ilui-st,  491,  537,  562,  5&4. 
New   Orleans   Mut.    Ins.    Co.    v.    New 

Orleans,  J.  &  G.  N.  R.  Co.,  415. 
New   Orleans,    St.   L.   &  C.    li.   Co.   v. 
Burke,  524. 
V.  Faler,  415. 
New  Philadelphia,  The,  313. 
Newport  News  &  M.  V.  R.  Co.  v.  Mer- 
cer, 325. 
Newport  &  C.  Bridge  Co.  v.  Douglass, 

166. 
Newson  v.  Railroad  Co.,  529. 

V.  Thornton,  114. 
Newton  v.  Fay,  109. 
New  World.  The,  v.  King.  24,  25,  27. 

497,  498,  518,  519. 
New  Yoi'k  Cent.  R.  Co.  v.  Lockwood, 

519. 
New  York  Cent.  &  H.  R.  R.  Co.  v.  Da- 
vis, 348. 
V.  Fraloff,  378,  379,  427. 
New  York  &  H.  R.  Co.  v.  Haws,  59. 
New  York  &  N.  U.  R.  Co.  v.  Schuyler, 

144. 
Niagara,  The.  v.  Cordes,  306,  359,  402. 
Nichols  V.  Smith,  312. 
Nicholson  v.  Chapman,  44,  52. 
V.  Railway  Co.,  338. 
V.  Willan,  414,  438. 
Nickerson  v.  Dan-ow,  116. 
Nicolls  V.  Bastard,  90.  91,  196.  197.  549. 
Nisbit  V.  Bank  &  Trust  Co.,  124,  126. 
Nith,  The,  325. 
Nitro-Glycerine  Case,  325. 
Noble  V.  Millikon,  285,  292. 

V.  Railway  Co..  518. 
Nolan  V.  Railroad  Co..  507. 
Noland  v.  Claris,  157. 
Noles  V.  Maruble,  151, 


606 


CASES  CITED. 


[The  figures  refer  tc  pages.] 


Nolton  V.  Railroad  Corp.,  494,  497. 
Norcross  v.  Norcross,  265,  271,  280,  287. 
Norfolk,  N.  &  W.  R.  Co.  v.  Wysor,  513. 
Norfolk  &  W.  R.  Co.  v.  Groseclose's 
Adm'r,  500. 

V.  Irvine,  379,  385,  388. 
Norris  v.  Railway  Co.,  362,  363. 
North  Carolina,  The,  546. 
North  Chicago  St  R.  Co.  v.  Cook,  522. 
Northern  v.  Williams,  456. 
Northern  R.  Co.  v.  Fitchburg  R.  Co., 
246,  465. 

V.  Page,  508,  510. 
Northern   Transportation   Co.    v.    Sel- 

lick,  553. 
Northey  v.  Field,  482. 
North-German  Loyd  v.  Heule,  333, 
Northrup  v.  Assurance  Co.,  532. 

V.  McGill,  194. 
Northwestern  Fuel  Co.  v.  Burlington, 

C.  R.  &  N.  R.  Co.,  554. 
Norton  v.  Baxter,  134,  175. 

V.  People,  59. 

V.  Piscataqua  Fire  &  Marine  Ins. 
Co.,  125. 

V.  Plumb,  111. 

V.  The  Richard  Winslow,  453. 

V.  Waite,  139. 

V.  Woodruff,  7. 
Norway  Plains  Co.  v.  Boston  &  M.  R. 

R.  236,  311,  449,  460. 
Notara  v.  Henderson,  402,  557. 
Noyes  v.  Railroad  Co.,  311,  468. 
Nudd  V.  Montanye,  34,  79,  98,  100. 

V.  Wells,  409. 
Nugent  V.   Smith,   305,  308,   310,   356, 

357,  359. 
Nunn  V.  Railroad  Co.,  538,  539. 
Nutting  V.  Railroad  Co.,  466,  468. 

o 

Cakes  v.  Northern  Pac.  R.  Co.,  384,  385. 
Oakley.  In  re,  133. 

V.  State,  3,  8,  12. 
Oaks  V.  Moore,  222. 
O'Bannon  v.  Southern  Exp.  Co^  319. 
O'Brien  v.  Bound,  204. 

V.  Gilchrist,  437. 

V.  Railroad  Co.,  495,  533--535. 

V.  Vaill,  300. 
Ocean  Nat.  Bank  of  New  York  v.  Fant, 
104, 


O'Connell  v.  Railway  Co.,  518. 

O'Conner  v.  Forster,  556. 

Oconto,  The,  313. 

O'Donnell  v.  Railroad  Co.,  496,  497,  514, 

O'Dougherty  v.  Railroad  Co.,  333. 

Ogden  V.  Coddington,  548, 

V.  Marshall,  556. 
Ogle  V.  Atkinson,  90. 
Ohio  R.  Co.  V.  Emrich,  472,  544. 
Ohio  &  M.  R.  Co.  V.  Dunbar,  312,  369, 
375. 

V.  Kerr,  117. 

V.  Muhliug.  496,  533, 

V.  Selby,  415,  530. 

V.  Stratton,  527. 

V.  Yohe,  368. 
Oil  Creek  R.  Co.  v.  Clark,  514. 
Old  Colony  R.  Co.  v.  Tripp,  506, 
Oliphant  v.  Markham,  113,  lia 
OUve  V.  Smith,  232. 
Olson  V.  Grossman.  283,  290,  291, 
Onderdonk  v.  Railway  Co.,  538. 
One  Hundred  and  Fifty-One  Tons  of 

Coal,  348. 
O'Neill  V.  Railroad  Co.,  315,  407. 
Oppeuheim  v.  Hotel  Co.,  283. 

V.  Russell,  343,  347. 
Oppenheimer  v.  Express  Co.,  366,  425, 

440.  447. 
Orange   County   Bank   v.    Brown,    70, 
304,  366,  377,  378,  383,  445,  446,  551, 
5."J2,  555. 
Ormsby  v.  Railroad  Co.,  409,  431. 
O'Rourke  v.  221  Tons  of  Coal,  452. 
Oi-ser  V.  Storms,  15,  91,  96,  9a 
Ortt  V.  Railway  Co.,  415. 
Osbom  V.  Ferry  Co.,  525. 
Ostrander  v.  Brown,  454,  456,  553. 
Otis  V.  Gardner,  145. 

V.  Wood,  82. 
Ouderkirk   v.   Central   Nat.   Bank,   44, 

155. 
Ouimit  V.  Henshaw,  316,  379,  381,  385, 

457.  462. 
Outhwite  V.  Porter,  137, 
Overby  v.  McGee,  21. 
Overland  Mail  &  Exp.  Co.  v.  CarroU, 

415. 
Overlock  v.  Hills,  158. 
Overseers  of  Poor  of  Crown  Point  v. 

Wai-ner,  260. 
Owen  v.  Long,  16. 

V.  Railroad  Co.,  430,  431,  481. 


CASES   CITED. 


60; 


[The  figures  refer  to  paRes.] 


Owens  V.  Wecdman,  60. 
Owues  V.  Kinsey,  119. 
Oxlade  v.  Railway  Co.,  337,  34L 
Oxley  V.  Railway  Co.,  552. 


Pacific,  The,  504. 

Pacific  Exp.  Co.  v.  Black,  316, 

V.  Daruell,  430. 

V.  Foley,  427. 
Packard  v.  Earle,  450. 

V.  Getmau,  99,  248,  319,  553. 

V.  Northcraft,  289. 

V.  Taylor,  358. 
Paddock  v.  Railroad  Co.,  433. 

V.  Wing,  90. 
Paddon  v.  Taylor,  147,  150. 
Page  V.  Fowler,  161. 
Paige  V.  Smith,  312. 
Pain  V.  Whittaker,  197. 
Paine  v.  Railroad  Go..  .567. 
Painter,  In  re,  506. 
Palmer,  The  Hattie,  450. 
Palmer  v.  Canal  Co.,  521. 

V.  Lorilard,  411. 

V.  Pennsylvania  Co.,  525. 

V.  Railway  Co.,  305,  323,  342. 
Paunell  v.  Hurley,  146. 
Pardee  v.  Drew,  306,  377. 
Park  V.  Hammond,  55. 
Park  Bank  v.  Watson,  139. 
Parker  v.  Flagg,  312,  351. 

V.  Flint,  260,  268,  271,  272. 

V.  Gaines,  90. 

V.  James,  305. 

V.  Lombard,  29,  33. 

V.  Patrick,  118. 

V.  Railway  Co.,  336,  457. 

V.  Smith,  77. 

V.  Tiffany,  28,  96. 
Parkhouse  v.  Forster,  260. 
Parkhurst  v.  Foster,  260,  272. 
Parkinson  v.  Railway  Co.,  342. 
Parmelee  v.  Fischer,  379,  381- 

V.  Lowitz.  310. 

V.  McNulty,  310. 

V.  Wilks,  411. 
Parrott  v.  Dearborn,  16,  68. 
Parshall  v.  Eggcrt,  107,  108,  124,  128. 
Parsons  v.  Gingell,  223. 

V.  Hardy.  311,  351.  363,  409,  410. 

V.  Monteath,  363,  421. 


Parsons  v.  Railroad  Co.,  532. 
Partridge  v.  Dartmouth  College,  231. 
Paterson  v.  Tash,  114. 
Patry  v.  Railway  Co.,  494. 
Patscheider  v.  Railway  Co.,  462. 
Patten  v.  Railway  Co..  345,  525. 
Pattei-son  v.  Clyde,  354. 

V.   Dooring,    142. 

V.  llarlaud.  1.30. 
Pattison  v.  Adams,  60. 

V.  Bank,  19,  44,  45,  47,  49,  51, 

V.  r.lanchard,  473,  475. 

V.  Culton,  482. 

V.  Hull,  173. 
Patton  V.  Magrath,  363,  364,  550,  552. 
Pauly  V.  State  Ix)an  &  Trust  Co.,  155. 
Payne  v.  Bonsley,  107. 

V.  Cutler,  138. 

V.  Gardiner,  96,  97. 
Pearce  v.  The  Thomas  Newton,  362. 
I'earson  v.  Duaue,  326,  503,  505. 
Pease  v.  Gloahec,  147. 

V.  Railroad  Co.,  534. 

V.  Smith,  29. 
Peavy  v.  Railroad  Co.,  515,  533, 
Peck  V.  Railroad  Co.,  507. 

V.  Weeks,  403. 
Peebles  v.  Farrar,  22. 
Peek  V.  North  Staffordshire  Ry.  Co.,  28. 
Peet  V.  McGraw,  271. 

V.  Railroad  Co.,  324.  369,  402. 
Peik  V.  Railway  Co.,  331,  507. 
Peixotti  V.  McLaughlin,  491. 
Pelton  V.  Railroad  Co.,  457. 
I'embertou  Co.  v.  New  York  Cent  R. 

Co.,  415. 
Pendergast  v.  Express  Co.,  468,  470. 
Peniston  v.  Railroad  Co.,  525,  532. 
Penn  v.  Railroad  Co.,  375.  434. 
Penn  Bank  v.  Frankish,  141. 
Pennewill  v.  Cullen,  214,  302,  363. 
Penney  v.  Lynn,  106. 
Pennington  v.  Railroad  Co.,  513,  534. 
Pennsylvania  Canal  Co.  v.  Burd,  314. 
Pennsylvania  Cent.  R.  Co.  v.  Schwar- 

zenbcrger,  468. 
Pennsylvania  Co.  v.  Bray,  512. 

V.  Gallagher,  495,  528. 

V.  Hluo.  513. 

V.   Hoagland,   522. 

V.   Holderman.  54-1.  546, 

V.   LangendorlT,  .5'J7. 

V.  Miller,  384,  388. 


608 


CASES   CITET. 


[The  flgrures  refer  to  pages.] 


Pennsylvania  Co.  v.  Newmeyer,  522. 

V.  Poor,  544. 

V.  Roy,  520.  523. 

V.  Woodwortb,  494. 
Pennsylvania  R.  Co.  v.  American  Oil 
Works,  343,  347. 

V.  Butler,  531. 

V.  Connell,  540,  565,  567. 

V.  Fries,  402. 

V.  Henderson,  519,  530. 

V.  Kilgore,  538. 

V.  Laujjdon,  514,  527. 

V.  MeCloskey's  Adm'r,  28,  531. 

V.  Miller,  331,  354. 

V.  O'Shaughnessy,  23. 

V.  Parry,  514. 

V.  Peoples,  561. 

V.  Price,  494. 

V.  Rairordon,  352. 

V.  Spicker,    513. 

V.  Stern,  478. 

V.  Titusville  &  P.  P.  R.  Co.,  556. 

V.  Vandier,  536. 
Pennsylvania  Ry.  Co.'s  Appeal,  145. 
Pennsylvania    Steel    Co.    v.    Georgia 
Railroad   &   Banking   Co.,   343,   347, 
348. 
Penrose  v.  Curren,  17. 
Pensacola  &  A.  R.  Co.  v.  State,  336, 

341. 
People  V.  Anderson,  13, 

v.  Babcock,   322. 

V.  Cogdell,  13. 

V.  Haynes,   547. 

V.  Johnson,    142. 

V.  Jones,   257,   258. 

V.  Mechanics'     &     Traders'     Sav. 
Inst,   40. 

V.  New  York  Cent  &  H.  R.  R.  Co., 
322. 

V.  New  York,  L.  E.  &  W.  It  Co., 
322. 

V.  Salem,  370. 
People's  Bank  v.  Gayley,  1.50. 
Peoria  &  P.  U.  R.  Co.  v.  United  States 

Rolling  Stock  Co.,  313,  461,  462. 
Pepper  v.  Burland,  221. 
Pereira  v.  Railroad  Co.,  408,  411,  472. 
Perham  v.  Coney,  189,  191. 
Perlt  V.  Pittfield,  109. 
Perkins  v.  Boardnian,  296. 

V.  Railroad  Co.,  23,  421,  468,  497, 
521,  531. 


Perley  v.  New  York  Cent  &  H.  R.  R 

Co.,  385. 
Perry  v.  Railroad  Co.,  501. 
Persch  v.  Quiggle,  57,  145. 
Pershing  v.  Railroad  Co.,  520,  527. 
Peters  v.  Elliott,  127,  146. 

V.  Peters,  58. 

V.  Railroad  Co.,  331. 
Petersen,  In  re,  465,  466. 
Peterson  v.  Case,  409. 

V.  Railroad  Co.,  474. 
Petitt  V.  First  Nat.  Bank  of  Memphis, 

120. 
Petiie  V.  Clark,  117. 

V.  Railroad  Co..  511. 
Pettigrew  v.  Barnum,  286. 
Petty  V.  Overall,  130,  155,  156. 
Pettyplace  v.  Dutch,  129. 
Pfister  v.  Railroad  Co.,  330,  385. 
Pheller  v.  Jewett  112. 
Phelps  V.  Bostwick.  30,  80. 

V.  People,  16,  183. 

V.  Railway  Co..  384. 
Phifer  v.  Railway  Co.,  415. 
Philadelphia,  The,  448. 
Philadelphia  C.  P.  Ry.  Co.  v.  Hassard, 

522. 
Philadelphia,  W.  &  B.  R.  Co.  v.  Ander- 
son, 538. 

V.  Hoeflich,  567. 

V.  Larkin,  536. 

V.  Lehman,  408,  409,  411. 

v.  McCormick,  537,  538. 

V.  State,  495,  528. 
Philadelphia  &  R.  R.  Co.  v.  Andersoai, 
526. 

V.  Barnard,  333. 

V.  Beck,  301. 

V.  Derby,  206,  497,  498,  519. 

V.  Edelstein,  538. 
Philips  V.  Brigham,  361. 

V.  Rose,  220. 
Phillips  V.  Bridge,  16. 

V.  Coudon,  92,  93. 

V.  Earle,  27,  318,  366. 

V.  Henson,  205. 

V.  Huth,  115. 

V.  Railroad  Co.,  467,  468. 

V.  Rodie,  346. 
Phoenix  Bank  v.  Risley,  40. 
Phoenix  Bessemer  Steel  Co.,  In  re,  214. 
Phoenix  Ins.  Co.  v.  Church,  138,  139. 


CASKS   CITED. 


609 


[The  figures  refer  to  papes.] 


Pickens  v.  Railroad  Co.,  534. 

V.  Ynrborough's  Adm'r,  117. 
Pickering  v.  Barkley,  3G4. 

V.  Busk,  116. 
Pickford  v.  Railroad  Co.,  316,  '323,  326, 

505,  554. 
Picquet  V.  McKay,  348. 
Piedmont  Manuf  g  Go.  v.  Columbia  & 

G.  R.  Co.,  305,  308,  468,  471,  472. 
Pierce   v.  Boston  Five-Cents  Savings 
Bank,  125. 

V.  Railway  Co.,  310. 

V.  Schenck,  7. 
Pindell  V.  Grooms,  118. 

V.  Railway  Co.,  460. 
Pingree  v.  Railroad  Co.,  344,  368. 
Pinkerton  v.  Manchester  &  L.  R.  R. 
144,  161. 

V.  Woodward,   258,    259.    264,   265, 
272,  274,  275,  281,  285,  286. 
Plnney  v.  Railroad  Co.,  456,  458. 

V.  Wells,  232,  349. 
Piper  V.  Manny,  280,  285,  287. 
Pitcher  v.  Railroad  Co.,  532. 
Pitlock  V.  Wells,  Fargo  &  Co.,  322,  824. 
Pitt  V.  Albritton,  176. 
Pittsburgh.    A.    &   M.    P.    Ry.    Co.    v. 

Caldwell,  498. 
Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.  v. 
Berryman,  512 

•'.  Racer,  549. 

V.  Russ,  513,  536. 
Pittsburgh,  C.  &  St.  L.  Ry.  Co   v.  De- 
win,  533. 

V.  Hays,  554. 

V.  Hollowell.  364,  409,  410. 

V.  Lyon,  377. 

V.  Morton.  324,  468,  549,  554. 

V.  Nash,  459. 

V.  Nelson,  521. 

V.  Vandyne,  503. 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bing- 
ham, 529. 

V.  Brigham,  526. 

V.  Hazen.  364,  410. 

V.  Hinds,  503,  524,  525,  527. 
Pittsburg  &  C.  R.  Co.  v.  Pillow,  503, 

524. 
Place  V.  Express  Co.,  411. 
Plaisted  v.  Navigation  Co.,  364. 
Piatt  V.  Birmingham  Axle  Co.,  144. 

V.  Hawkins,  144. 

LAVVIiAILM.— 39 


Piatt  V.  Iii])bard,  31,  92,  236,  240,  241, 
246,  303. 

V.  Railroad  Co.,  539. 
Playter  v.  Cunningham,  199. 
I'oo  V.  Home,  3. 
Polhill  V.  Walter,  19. 
Pollard  V.  Vinton,  437. 
Pollock  V.  Laudis,  261,  272. 
Pomeroy  v.  Donaldson,  31L 

V.  Smith,  130,  151. 
Ponce  V.  McKlvy,  107. 
Poole  V.  Banking  Co.,  522. 

V.  Symonds,  59. 
Porcher  v.  Railroad  Co.,  326. 
Port  Adelaide,  The,  452. 
I'orter  V.  Express  Co.,  430. 

V.  Frazer,  165. 

V.  Hildebnmd,  382. 

V.  The  New  England,  517,  565. 

V.  Parks,  145. 

V.  Railroad  Co.,  459,  510. 
Porterfleld  v.  Humphreys,  375. 
Portland  Bank  v.  Stubbs,  107. 
Post  V.  Railroad  Co.,  513. 
Pothonier  v.  Dawson,  104,  106. 
Potter  V.  Lansing,  544,  545. 
Potts  V.  Railroad  Co.,  343,  346,  847. 
Poucher  v.  Railroad  Co.,  501,  531. 
PoAvdor  Co.  V.  Burkhardt,  7,  9,  21. 
PoAvell  v.  Mills,  311,  322,  369. 

v.  Myers,  309,  477. 

V.  Railroad  Co.,  309,  375. 
Power  V.  First  Nat.  Bank,  62. 
Powers  V.  Davenport,  310,  360,  361. 

V.  Mitchell,  237. 
Powhatt^an  Steamlx>at  Oo.  v.  Appomat- 
tox R.  Co.,  244. 
Powles  V.  Hider,  200. 
Pozzi  V.  Shipton,  552,  555. 
Prather  v.  Koan,  71. 
Pratt  V.  Railroad  Co.,  466,  468. 

V.  Taunton    Copper   Manuf'g   Oo., 
144.    , 
Pray,  The  E.  H.,  480. 
Prentice  v.  Decker,  443. 
Preston  v.  Prather,  48.  63. 
Pribble  v.  Kent,  3,  29,  32. 
Price  V.  Dime  Sav.  Bank,  IIL 

V.  Hartshorn,  332. 

V.  Powell.  454,  546. 

V.  Railway  Co.,  ,345,  477,  47a 
Prichett  v.  Cook,  9,  21. 


610 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Prlckett  V.  New  Orleans  Ancbor  Line, 

463. 
Priestly  v.  Fernie,  550,  551. 

V.  Railroad  Co.,  559. 
Prince  v.  Railway  Co.,  495. 
Printup  V.  Johnson,  150. 
Prize  Cases,  The.  365. 
Proctor  V.  Nicholson,  295. 
Profilet  V.  Hall,  283. 
Propst  V.  Roseman,  121. 
Fruitt  V.  Railroad  Co.,  359,  862,  410, 

526. 
Pulis  V.  Sanborn,  232. 
Pulliam  V.  Burlingame,  22,  91,  96. 
Pullman  v.  Upton,  154. 
Pullman  Car  Co.  v.  Gardner,  262,  312, 

400. 
Pullman  Palace  Car  Co.  v.  Barker,  563. 

V.  Freudeusteiu,  312,  397,  400. 

V.  Gavin,  400. 

V.  Gay  lord,  262. 

V.  Lowe,  202.  265,  312,  400. 

V.  PoUock,  312,  399,  400. 

V.  Reed,  508. 

V.  Smith,  202,  263,  312,  400,  539. 
Purvis  V.  Coleman,  280,  282,  284,  291. 
Putnam  v.  Railroad  Co.,  503,  515,  524, 
525. 

V.  Wyley,  22,  91,  96. 


Q 


Quaker  City,  The,  457. 

Quarman  v.  Burnett,  205. 

Queen  of  the  Pacific,  The,  552. 

Queiroz  v.  Trueman,  114. 

Qyillian  v.  Central  Railroad  &  Banking 

Co.,  220. 
Quimby  v.  Railroad  Co.,  497,  531. 

V.  Vanderbilt,  467,  510,  517,  540. 
Quinton  v.  Courtney,  285. 


B 


Raben  v.  Railway  Co.,  538,  539. 
Rafferty  v.  New  Brunswick  Fire  Ins. 

Co.,  257. 
Ragan  v.  Aiken,  336,  337,  339. 
Raliilly  v.  Wilson,  8. 
Railroad  Co.  v.  Androscoggin     Mills, 

435,  471.  472. 


Railroad  Co.  v.  Armstrong,  528. 

V.  A  spell,  522. 

V.  Fraloff,  366,  381,  388. 

V.  Garrett,  534. 

V.  Gladmon,  527. 

V.  Lawton,  528. 

V.  Lockwood,  24,  416,  417,  434,  530, 
531. 

V.  Manufacturing  Co.,  416,  465,  466, 
468. 

V.  Maris,  458,  459. 

V.  National  Bank,  141. 

V.  Pollard,  527. 

V.  Pratt,  402,  416,  467-470. 

V.  Reeves,  31,  359,  361,  362. 

V.  Skillman,  534. 

V.  Stevens,  530. 

V.  Walker,  528. 

V.  Walrath,  521,  523. 
Raisler  v.  Oliver,  486,  487. 
Raitt  V.  Mitchell,  232. 
Raley  v.  Ross,  154. 
Ramaley  v.  Lelaud,  291,  292. 
Ramsden  v.  Railroad  Co.,  343,  498,  523, 

533. 
Rand  v.  Transportation  Co.,  415. 
Randall  v.  Lynch,  334. 

V.  Railroad  Co.,  342. 
Raudelson  v.  Murray,  205,  244. 
Rankin  v.  Craft,  74. 

V.  Packet  Co.,  350,  451. 

V.  Railroad  Co.,  460. 
Ransome  v.  Railway  Co.,  337,  341. 
Rapson  v.  Cubitt,  200. 
Ratcliff  V.  Davies,  107. 

V.  Vance,  129,  160. 
Rathbone  v.  Neal,  409. 
Rathbun  v.  Steamboat  Co.,  452. 
Raulston  v.  McClelland,  75. 
Rawitzky  v.  Railroad  Co.,  513. 
Rawley  v.  Bigelow,  481. 
Rawson,  In  re,  11. 

V.  Holland,  409,  457,  466,  468. 

V.  Railroad  Co..  443,  444,  510,  511. 
Ray  V.  Tubbs,  17,  90,  187,  191,  202, 
Raymond  v.  Bearnard,  219. 

v.  Tyson,  348. 
Rea  V.  Trotter,  45. 
Read  v.  Amidon,  208. 

V.  Railroad  Co.,  354,  362,  410. 

V.  Smith.  44. 

V.  Spaulding,  93.  362. 
Readhead  v.  Railway  Co.,  517,  521. 


0ASE3   CITED. 


611 


[The  figures  refer  to  pages.] 


Reading  v.  Price,  23,  200. 
Reary  v.  Railway  Co.,  493. 
Reaves  v.  Waterman,  364. 
Redmond  v.  Steamboat  Co.,  454,  450. 
Reed  v.  Crowe,  241. 

V.  Express  Co.,  4G8,  471. 

V.  Railway  Co.,  537. 
Reeder  v.  Anderson,  52. 
Reedle  v.  Railroad  Co.,  527. 
Reeves  v.  Capper,  172. 

V.  The  Constitution,  203. 

V.  Ploush,  157. 

V.  Smith,  135. 
Reg.  V,  Rymer,  259,  261,  269,  270. 
Regan  v.  Railway,  466. 
Reiehenbach  v.  McKean,  130. 
Reld  V.  Hoskins,  365. 
Reineman  v.  Railroad  Co.,  348. 
Reitenbach  v.  Johnson,  215. 
R.  E.  Lee,  The,  396,  398. 
Relf  V.  Rapp,  366. 
Relyea  v.  Mill  Co.,  437. 
Remick  v.  Atkinson,  28. 
Rendsberg.  The,  182. 
Renfro's  Adm'x  v.  Hughes,  194. 
Rex  V.  Ivens,  275,  276. 

V.  Llewellyn,  269. 
Reynolds  v.  Railroad,  480,  481,  494. 

V.  Shuler,  194.  209. 

V.  Toppan,  318. 

V.  Witte,  116,  161. 
R.  G.  Winslow,  The,  244. 
Rhea  v.  Allison,  138. 
Rice  V.  Cutler,  127. 

V.  Hart,  460,  461. 

V.  Nixon,  8. 

V.  Railroad  Co.,  430,  431. 
Rich  V.  Coe,  550. 

y.  Kneeland,  310. 

V.  Railroad  Co.,  54. 
Richards  v.  Railroad  Co.,  459. 

V.  Westcott,  310. 
Richardson  v.  The  Charles  P.  Chou- 
teau, 472. 

V.  Crandall,  136. 

V.  Futrell,  41. 

V.  Coddard,   452,   453,   456. 

V.  Goss,  347,  481. 

V.  Nathan,  148. 

V.  Olmstead,  8,  245. 

V.  Railroad  Co.,  375. 

V.  Rich,    347,    553. 

V.  Washington  Bank,  174. 


Richard  Winslow,  The,  4.53. 
Richmond  v.  Smith,  271,  279,  280,  287. 

v.  Steamlwat  Co.,  452. 
Richmond  City  Ry.  Co.  v,  Scott,  537. 
Richmond  &  D.  R.  Co.  v.  Benson,  360. 

v.  Smith,  538. 
Rickorson    Roller-Mill    Co.    v.    Grand 

Rapids  &  L  R.  Co.,  408,  470. 
Riddle  v.  Railroad  Co.,  303. 
Rider  v.  Rubber  Co.,  84. 
Riley  V.  Hoi-ne,  305,  321,  325,  354,  440. 
Riudge   V.    Inhabitants   of   Coleralne, 

197. 
Rintoul  V.  Railroad  Co.,  413. 
Ripley  v.  Wightman,  211. 
Rivara  v.  Ghio,  46. 
Rixford  v.  Smith,  367,  375,  376. 
Rol)ort  L.  Stevens,  The,  313. 
Roberts  v.  Bardell,  97. 

V.  Koehler,  343,  346,  378,  514. 

V.  Xoyes,  22,  34. 

V.  Riley,  415. 

V.  Stuyvesant     Safe-Deposit     Co., 

248. 
V.  Sykes,  97,  132,  133. 
V.  Thompson,  157. 
V.  Turner,  246,  303,  310,  354. 
V.  Wyatt,  91,  ISO. 
Roberts'  Appeal,  144. 
Robertson  v.  Kennedy.  310. 
V.  Railroad  Co.,  495. 
V.  Wilcox,  113. 
Robins  v.  Gray,  295. 

V.  May,  142. 
Robinson  v.  Baker,  225,  344. 
V.  Frost,  112. 

V.   Hurley,  160,  162,  164,  167,  169. 
V.  Larrabeo,  232,  233. 
V.  Railroad  Co.,  316,  522. 
V.  Transportation  Co.,  441. 

471,  472. 
V.  Walter,  294,  295. 
Robson  V.  Godfrey,  219,  221. 

v.  Swart,   150. 
Roby  V.  Labuzan,  130. 
Rockwell  V.  Nearing,  93. 
V.  Proctor,   282,  287. 
Roderick  v.  Railroad  Co.,  366. 
Rodgers  v.  Grothe,  187,  233,  234. 

V.  Stophel,  13.  182.  239.  244,  247. 
Rodocanachl  v.  Milburn,  557.  558. 
Rodriguez  v.  Hefferman,  114. 
Roeder  v.  Green  Tree  Brewery  Co.,  151. 


612 


CASES   CITBD. 


[The  figures  refer  to  pages.] 


Rogers  V.  Railroad  Co.,  316,  435. 
V.  Rajendro  Dutt,  54. 
V.  Steamboat  Co.,  500. 
V.  Ward,  163. 
V.  Wheeler,  312,  315,  407. 
Rogers  Locomotive  &  Machine  Works 

V.  Erie  Ry.  Co.,  311. 
Rogstad  V.  Railway  Co.,  529. 
Rome  R.  Co.  v.  Sullivan,  459,  469. 

V.  Wimberly,  463. 
Root  V.  Chandler,  21,  91,  97. 

V.  Railroad  Co.,  311,  337,  338,  840, 
405,  467,  471,  472. 
Rooth  V.  Railroad  Co.,  404. 

V.  Wilson,  20,  47,  60,  90,  202. 
Rosa  V.  Brotherson,  138. 
Rose  V.  Railroad  Co.,  498,  511,  530,  531. 

V.  Story,  6. 
Rosenfeld  v.  Railway  Co.,  415,  427,  428, 

433. 
Rosenfield  v.  Express  Co.,  479. 
Rosenplaenter  v.   Roessle,  293. 
Rosenzweig  v.  Frazer,  160. 
Ross  V.  Clark,  92,  97,  98,  253. 
V.  Hill,  51,  67. 
V.  Johnson,  553. 
V.  Railroad  Co.,  367,  462. 
V.  Southern  Cotton-Oil  Co.,  29. 
Rotch  V.  Hawes,  186,  187,  191. 
Roth  V.  Railroad  Co.,  450,  458.  462. 
Rothschild  v.  Railroad  Co..  338,  459. 
Roulston  V.  McClelland,  15. 
Rouser  v.  Railway  Co.,  513, 
Rowe  v.  Pickford,  481. 
Rowland  v.  Jones,  202. 
Rowley  v.  Bigelow,  146,  480,  548. 

V.  Home,  440. 
Rowning  v.  Goodchild,  485. 
Rowth  V.  Howell,  182. 
Rozet  V.  McClellan.  120,  162,  164. 
Rubenstein  v.  Cruikshanks,  283,  285. 
Rucker  v.  Donovan,  343,  481. 
Ruggles  V.  Illinois,  331,  341,  507. 
Runyan  v.  Caldwell,  241. 
Ruppel  V.  Railway  Co.,  408,  409,  425. 
Rushforth  v.  Hadfield,  112,  230,  231, 

347. 
Russell  V.   Pagan,  265,  267,  270,  271, 
279. 
y.  Favler,  198. 
V.  Fillmore,  171. 
V.  Hadduck,  112. 
V.  Koehler,  218,  230. 


Russell  V.  Neimann,  364. 
V.  Plaice,  117. 
V.  Railroad  Co.,  496. 
Russell   Manuf'g  Co.   v.   New   Haven 

Steamboat  Co.,  453^55. 
Rutgers  v.  Lucet,  47,  54,  98. 
Ryall  V.  Rolle,  107,  124. 
Ryan  v.  Railroad  Co.,  355,  496. 


S 


Sadler,  In  re,  34. 

Safe-Deposit  Co.  of  Pittsburgh  v.  Pol- 
lock, 31,  236,  248. 
Sage  V.  Gittner,  248. 
Sager  v.  Railroad  Co.,  355,  402. 
St.  Clair  v.  Railroad  Ca,  409. 
St.  John  V.  Express  Co.,  366,  472. 

V.  O'Conuel,  112. 
St.  Joseph  &  W.  R.  Co.  v.  Wheeler,  490. 

492,  493. 
St.  Losky  V.  Davidson,  128,  155. 
St.  Louis  v.  Siegist,  258. 
St.  Louis,  A.  &  T.  H.  R.  Co.  v.  HiU,  338. 
V.  Montgomery,  315. 
v.  South,  509,  510. 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Hardy, 
.507. 
V.  Mackie,  512. 
St  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Heath,. 
409,  551. 
V.  Jones,  411. 
V.  Knight,  315,  437. 
V.  Leigh,   504. 
V.  Murphy,  314. 
V.  Southern  Exp.  Co.,  329. 
St.  Louis,  K.  C.  &  N.  Ry.  Co.  v.  Piper,. 

415,  472. 
St.  Louis  Nat.  Bank  v.  Ross,  116,  128, 

149. 
St.  Louis  &  C.  R.  Co.  V.  Hardway,  463. 
St  Louis  &  S.  E.  Ry.  Co.  v.  Dorman, 
375. 
V.  Smuck,  433. 
St  Louis  &  S.  F.  Ry.  Co.  v.  Gill,  507. 
St.  Louis  &,  T.  H.  R.  Co.  v.  Rose,  553. 
St.  Paul  Roller-Mill  Co.  v.  Great  West- 
ern Dispatch  Co.,  482. 
Salem  Bank  v.  Gloucester  Bank,  205. 
Sales  V.  Stage  Co.,  311. 
Salmon  Falls  Manuf'g  Co.  y.  The  Tan- 
gier, 452,  454. 


CASKS   CITED. 


613 


[The  flgrures  rpfer  to  papes.] 


Salomons  v.  Nissen,  482. 
Salt  V.  Field,  74. 
Saltonstall  v.  Stockton,  502. 
Salvin  v.  Coal  Co.,  54. 
Samms  v.  Stewart,  302,  305. 
Samuel  v.  Cheney,  479. 
Samuel  J.  Christian,  The,  552. 
Samuels  v.  Railroad  Co.,  340. 
San  Antonio  &  A.  P.  Ry.  Co.  v.  Adams, 
494. 

V.  Lynch,  492. 
Sanborn  v.  Colman,  29,  187. 
Sanders  v.  Davis,  120. 

V.  Spencer,  287. 

V.  Van  Zeller,  333. 

V.  Youns.  311. 
Sanderson  v.  Lambei-ton,  547. 
Sandford  v.  Railroad  Co.,  322,  328,  335, 

502,  536. 
Sangamon  &  M.  R.  Co.  v.  Henry,  557. 
Santee,  The,  430. 
Sargent  v.  Boston  &  L.  R.  Corp.,  329. 

V.  Franklin  Ins.  Co.,  127. 

V.  Gile,  9,  29,  187. 

V.  Metcalf,   142. 

V.  Morris,   548. 

V.  Railroad  Corp.,  335. 

V.  Usher,  225. 
Sasseen  v.  Clark,  280,  285,  288,  299. 
Satterlee  v.  Groat,  305. 
Savage  v.  Insurance  Co.,  412. 
Savannah,  F.  &  W.  R.  Co.  v.  Aloat,  425, 

V.  Harris,  468. 

V.  Pritchard,  408. 
Savannah,  G.  &  N.  A.  R,  Co.  v.  Wilcox, 

368. 
Savannah,  S.  &  S.  R.  Co.  v.  Bonaud, 

516. 
Savill  V.  Barchard,  231. 
Sawyer  v.  Corse,  488. 

V.  Dulany,  522. 

V.  Railroad  Co.,  521,  526. 
Scaife  v.  Tobin,  333. 
Scammon  v.  Wells,  Fargo  &  Co.,  546. 
Scanlan  v.  Cobb,  16. 
Scarfe  v.  Morgan,  222-225. 
Schepp  V.  Carpenter,  140. 
Schermer  v.  Neurath,  46. 
Scheu  V.  Benedict,  453. 
Schieffelln  v.  Harvey,  864,  550. 
SchiUlnger  v.  U.  S.,  485. 
Schlndler  v.  Railway  Co.,  52a 

V.  Westover,  245. 


Schloss  V.  Wood,  305. 
Schmidt  v.  Blood,  208.  230.  230,  240- 
242. 

V.  Railway  Co..  315. 
Schneider  v.  Evans.  344,  340. 
School  District  in  Medfield  v.  Boston, 

H.  &  E.  R.  Co.,  415.  551. 
Schopmau  v.  Railroad  Co.,  405,  541. 
Schotsinans  v.  Railroad  Co.,  481. 
Schrooder  v.  Railroad  Co..  448,  472. 
Schroyer  v.  Lynch,  313,  487. 
Schuchardt  v.  Hall,  148. 
Schular  v.  Hudson  River  R.  Co.,  200. 
Schulzo-Berge  v.  The  Guildiiall,  441. 
Scliutter  V.  Express  Co.,  475. 
Schwerin  v.  McKie,  31,  241. 
Scofield  V.  Railway  Co.,  33(5-341. 
Scothorn  v.  Railway  Co.,  471. 
Scott  V.  Bank,  47,  49. 

V.  Crane,  80. 

V.  Crews,  155. 

V.  Delaliunt,  227,  229. 

V.  National  Bank  of  Chester  Val- 
ley, 40,  73. 

V.  Pettit,  481. 

V.  Railroad  Co.,  349. 

V.  Steamship  Co.,  558. 
Scotthorn  v.  Railroad  Co.,  400. 
Scovill  V.  Griffith,  4U8. 
Scranton  v.  Baxter.  18,  20,  27,  89,  90. 
92,  99. 

V.  Farmers'  &  Mechanics'  Bank  of 
Rochester,   34. 
Seaman  v.  Adler,  332. 
Searight  v.  Bank,  112. 
Searle  v.  Laverick,  250. 
Seal's  V.  Railroad  Co.,  516. 

V.  Wills.  348. 
Seaver  v.  Railroad  Co.,  496. 
Secomb  v.  Nutt,  480. 
Second  Nat.  Bank  v.  Ocean  Nat.  Bank, 
45,  46. 

V.  Sproat.  156. 

V.  Walbridge,  148-150. 
Security  Bank  of  Minnesota  v.  Lutt- 

gen.  146,  148. 
Seevers  v.  Gabel,  30. 
Segura  v.  Reed,  454,  456. 
Selby  V.  Railroad  Co.,  405. 
Self  V.  Dunn,  308,  311. 
Soligman  v.  Armljo,  364. 
Sellers  v.  Jones.  156,  157. 
Sessions  r.  Western  R.  Corp.,  244. 


614 


CASES  CITBD. 


[The  figures  refer  to  pages.] 


Sevier  v.  Railroad  Co.,  522,  539. 

Sewall  V.  AUen,  27,  322. 

Seward  v.  Seymour,  262. 

Sexton  V.  Graliam,  8,  246. 

Seybolt  v.  Railroad  Co.,  31,  432,  494, 

526,  530. 
Seymour  v.  Brown,  7. 

V.  Cook,  281. 

V.  Newton,  480,  481. 

V.  Railway  Co.,  525. 
Shaacht  v.  Railroad  Co.,  368. 
Shannon  v.  Railroad  Co.,  501. 
Sharp  V.  Grey,  311. 
Sharpe  v.  National  Bank  of  Birming- 
ham, 176. 
Shaw  V.  Berry,  280. 

V.  Ferguson,  231. 

y.  Kaler,  214. 

V.  Railroad  Co.,  28,  146,  147,  891, 
405. 

V.  Spencer,  145,  146. 

V.  Wilshire,  11,  108,  109,  172. 
Shearer  v.  Express  Co.,  477. 
Shelbuiy  v.  Scotsford,  35,  79,  100. 
Shelbyville,  L.  B.  R.  Co.  v.  Lewark, 
529. 

V.  Lynch,  529. 
Shelbyville  R.  Co.  v.  Louisville,  C.  &  L. 

R.  Co.,  463. 
Shelden  v.  Robinson,  322,  323,  550. 
Shelleuberg  v.  Railroad  Co.,  479. 
Shelton  v.  Railroad  Co.,  512. 

V.  Transiwrtation  Co.,  316,  440,  441. 
Shenk  v.  Propeller  Co.,  456,  460,  478, 

553. 
Shepard  v.  De  Bemales,  334. 

V.  Railway  Co.,  567. 
Sheppard  v.  Peabody  Ins.  Co.,  215. 
Sheridan  v.  New  Quay  Co.,  100,  479, 
480. 

v.  Railroad  Co.,  522. 
Sherley  v.  Billings,  524. 
Sherman  v.  Railroad  Co.,  454,  558. 

V.  Steamship  Co.,  403. 

V.  WeUs,  310. 
Shiells  V.  Blackburne,  24,  68,  69. 
Shillibeer  v.  Glyn,  84,  86. 
Shipley  v.  Kymer,  114. 
Shipman  v.  Aetna  Ins.  Co.,  144. 
Shipper  v.  Railroad  Co.,  338,  340,  341. 
Shirras  v.  Calg,  111. 
Shloss  V.  Cooper,  21. 
Shoecraft  v.  Bailey,  272. 


Shoemaker  v.  Kingsbury,  490. 

V.  National  Mechanics'  Bank,    110. 
Shotwell  V.  Wendover,  194. 
Shoulters  v.  Allen,  16. 
Shriver  v.  Railroad  Co.,  355,  367, 
Shropshire  Union  Ry.  &  Canal  Co.  T. 

Reg.,  144. 
Shultz  V.  Wall,  291. 
Sibley  v.  AJdrich,  278,  280-282. 
Sickels  V.  Pattison,  219. 
Siegrist  v.  Arnot,  490. 
Silver  v.  Hale,  410. 
Simmons  v.  Lillystone,  189. 
Simon  v.  Miller,  285. 
Simpson  v.  Waldby,  62. 

V.  Wrenn,  23,  79,  98,  100. 
Sims  V.  Canfield,  107. 
Sinclair  v.  Bowles,  218,  219. 

V.  Jackson,  77. 
Singer  Manuf  g  Co.  v.  Miller,  294. 
Sioux  City  &  P.  R.  Go.  v.  First  Nat. 

Bank,  437. 
Sitgreaves  v.  Farmers'  &  Mechanics' 

Bank,  169. 
Skelley  v.  Kahn,  61,  63. 
Skilding  v.  Warren,  140. 
Skilling  V.  Bollman,  148. 
Skinner  v.  Hall,  468. 

V.  Railway  Co.,  495. 
Slater  v.  Railway  Co.,  354,  355,  362. 
Slaughter  v.  Green,  7. 
Sleade  v.  Payne,  455. 
Sleat  V.  Fagg,  27,  70,  366,  407. 
Slevin  v.  Morril,  157. 
Slimmer  v.  Merry,  491. 
Slingerland  v.  Morse,  80. 
Slocum  V.  Fairchild,  438. 
Sloman  v.  Railroad  Co.,  382,  885,  387. 
Small  V.  Robinson,  225. 
Smallman  v.  Whitter,  503. 
Smedes  v.  Bank,  54. 
Smiley  v.  Allen.  79,  96,  99. 
Smith  V.  Anderson,  132, 

V.  Atkins,  119. 

V.  Bank,  47. 

V.  Boston  &  M.  R.  Co.,  386,  88a 

V.  Chamberlain,  317. 

V.  Clark,  7. 

V.  Cook,  250. 

V.  Dearlove,  223. 

V.  Deunison,  110,  113. 

v.  Dinsmore,  430. 

V.  Findley,  332. 


CASES   CITED. 


615 


[The  figures  refer  to  pages.] 


Smith  V.  First  Nnt.  Bank,  27,  30,  24L 

V.  Frost,  23G,  244. 

V.  Gavin,  166. 

V.  Hammond,  22. 

V.  Home,  415. 

V.  Jones,  82. 

V.  Lewis,  546. 

V.  Louisville  &  N.  R.  Co.,  430. 

V.  Mariner,  120. 

V.  ISlGogan,  218,  236,  237. 

V.  Miller,  157. 

V.  Milles,  91,  96. 

V.  New  York  Cent  R.  Co.,  23. 

V.  Niles,  186. 

V.  Pierce,  313. 

V.  Railroad  Co.,  355,  359,  362,  369, 
375.  379,  403,  410,  421,  423,  458, 
476,  500,  519,  53a 

V.  Read,  208,  261. 

V.  Rockwell,  164. 

V.  Sasser,  172. 

V.  Savin,  145.  161. 

V.  Seward,  551,  552. 

V.  Sbeperd,  358. 

V.  Smith,  548. 

V.  Strout,  163. 

V.  Wilson,  282,  285,  289. 
Smitba  v.  Railroad  Co.,  431. 
Smlthurst  v.   Edmunds,   12,   111,   119. 
Smyrl  v.  Nlolen,  363. 
Snead  v.  Watkins,  295. 
Sneider  v.  Geiss,  286,  289. 
Snellbaker  v.  Railroad  Co.,  509. 
Snider  v.  Express  Co.,  442. 
Snow  V.  Carruth,  349. 

V.  Railway  Co.,  345. 
Sodergren  v.  Flight,  348. 
Sodowsky's  Ex'r  v.  INI'Farland,  29,  61. 
Solly  V.  Rathbone,  114. 
Somes  V.  British  Empire  Shipping  Co., 

230. 
Sonoma  Val.  Bank  v.  Hill,  163. 
Soper  V.  Sumner,  22. 
Soule  V.  Union  Bank,  120. 

V.  White,  130,  151. 
Soumet  V.  Express  Co.,  442. 
South  Australian  Ins.  Co.  v.  Randell, 

7,  8. 
South  Caroilina  R.  Co.,  v.  Nix,  534. 
Southcote  V.  Bennet,  240. 
Southcote's  Case,  5. 
Southern  Exp.  Co.  v.  Armstead,  449. 

V.  Boullment,  332. 


Southern  Exp.  Co.  v.  Caldwell,  429, 43a 

V.  Caperton,  480,  &46,  549. 

V.  Graft,  545. 

V.  Crook,  3U(),  438,  478. 

V.  Everett,  450. 

V.  Glenn,   429. 

V.  Iless,  469. 

V.  Hunnicutt,  429,  480. 

V.  Kaufman,  367. 

V.  Memphis,  etc.  R.  Co.,  329. 

V.  Moon,  425. 

V.  Newby,  310,  318,  442,  445. 

V.  St.   Louis,   I.  M.  &  S.   Ry.  OOm 
328,  336. 

V.  Shea,  469. 

V.  Van  Meter,  477. 

V.  Womack,  362,  365. 
Southern  Pac.  R.  Co.  v.  Johnson,  410. 

V.  Maddox,  425. 
Southern  R.  Co.  v.  Keudrick,  537,  538. 
South  Florida  R.  Co.  v.  Rhodes,  515, 

535. 
Southwestern,  The,  482. 
Southwestern  R.  R.  v.  Singleton,  491. 
Southwestern  Railroad  Co.  v.  Felder, 

459. 
South  &  N.  A.  R.  Co.  V.  Henlein,  355, 
367,  375,  403,  415,  425. 

V.  Wood,  459,  544,  546. 
Spalding  v.  Bank  of  Susquehanna  Co., 
164. 

V.  Rudiug,  148. 
Spangler  v.  Eicboltz,  182. 
Spann  v.  Transportation  Co.,  410. 
Sparks  v.  Purdy,  194. 
Spartan,  The,  455. 
Spears  v.  Hartly,  231,  248. 

V.  Railroad  Co.,  310. 
Spellman  v.  Transit  Co..  518. 
Spencer  v.  Ballon,  140. 
Spice  V.  Bacon.  283,  291. 
Spolford  V.  Railroad,  337,  507. 
Spokane  Truck  &  Dray  Co.  v.  Hoefer. 

26. 
Spooner  v.  Holmes,  189. 

V.  Manchester,   188,  189,   192. 

V.  Mattoon,  61,  71. 
Sprague  v.  Railway  Co.,  415,  430,  431, 
457. 

V.  Smith,  312. 
Spring  V.  Hager.  282.  283. 

V.  HaskelL  557. 

V.  South  Carolina  Ina  Co.,  232. 


616 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Sproul  v.  Hemmingway,  200. 

Sprowl  Y.  Kellax,  358. 

Squire  v.  Railroad  Co.,  816,  415,  427, 

428,  441. 
Srodes  v.  Caven,  130. 
Stadtfeld  v.  Huntsman,  14. 
Stafford  v.  Walter,  544. 
Stalker  v.  McDonald,  137. 
Standen  v.  Brown,  109. 
Standish  v.  Steamship  Co.,  503. 
Stannard  v.  Prince,  246,  303. 
Stanton  v.  Bell,  61,  68,  69. 

V.  Eager,  482. 

V.  Leland,  280. 
Staples  V.  Smith,  21. 
Star  of  Hope,  The,  407. 
Starrett  v.  Barber,  154. 
State  V.  Bryant,  83. 

V.  Campbell,  513,  533,  534. 

V.  Chamblyss,  26<3. 

V.  Chew  Muck  You,  3. 

V.  Chovin,  514. 

V.  Cincinnati,  W.  &  B.  Ry.  Co.,  337 

V.  Delaware,  L.  &  W.  R.  Co.,  322. 

y.  Fitzpatrick,  16,  33. 

V.  Kinney,  536. 

V.  Mathews,  261. 

V.  Meagher,  27. 

V.  Overton,  510,  514,  515. 

V.  Railroad  Co.,  340,  527. 

V.  Steele,  276. 

V.  Thompson,  508. 
State  Bank  v.  Galennie,  120. 
State  of  New  York,  The,  378. 
Steamboat  Co.  v.  Atkins,  549. 
Steamboat  Crystal  Palace  v.  Vander- 

pool,  264,  313. 
Steams  v.  Marsh,  104,  111,  151,  158, 

159,  162,  164-167. 
Steele  v.  McTyre,  305-307,  31L 

V.  Townsend,  355. 
Steelman  v.  Taylor,  332. 
Steen  v.  Insurance  Co.,  429. 
Steere  v.  Benson,  158. 
Steers  v.  Railroad  Co.,  427. 

V.  Steamship  Co.,  354,  383. 
Steinman  v.  Wilkins,  222-224,  230,  806. 
Steiuweg  v.  Railroad  Co.,  403,  405. 
Stentom  v.  Jerome,  126. 
Stephens  v.  Elwall,  209. 
Stephenson  v.  Hart,  99,  209,  450,  478, 
553. 

▼.  Little,  60. 


Stephenson  v.  Price,  82,  34. 
Stevens,  The  Robert  L.,  313. 
Stevens  v.  Armstrong,  200. 

V.  Bell,  111. 

V.  Hurlbut  Bank,  158. 

V.  Low,  194. 

V.  Railroad   Co.,    18,   20,   237,   844, 
345. 

V.  Wilson,  116. 
Stevenson  v.  Car  Co.,  400. 

V.  Hyland,  137. 
Stewart  v.  Davis,  27,  89,  93,  181,  186. 

V.  Drake,  159. 

V.  Frazier,  02,  75. 

v.  Gracy,  314. 

V.  Head,  300. 

V.  McCready,  273. 

V.  Parsons,  292. 

V.  Phoenix  Ins.  Co.,  149,  150. 

V.  Railroad  Co.,  337,  468. 

V,  Stone,  210. 

V.  Transportation  Co.,  407. 
Stickney  v.  Allen,  233. 
Stief  V.  Hart,  130. 
Stiles  V.  Davis,  79,  368. 

V.  Railroad,  528. 
Stillwell  V.  Staples,  215,  412. 
Stimson  v.  Connecticut  R.  R.  Co.,  384. 
Stirling  v.  Garritee,  161. 
Stock  V.  Harris,  485. 
Stoddard  v.  Kimball,  136,  142. 
Stoddard     Woolen     Manufactory     v. 

Huntley,  233. 
Stokes  V.  Frazier,  1G8-170. 

V.  Saltoustall,  527. 
Stollenwerck  v.  Thacher,  116,  147. 
Stone  V.  Brown,  120. 

V.  Hayes,  547. 

V.  Marye,  145. 

V.  Railroad  Co.,  534. 

V.  Rice,  455. 

V.  Trust  Co.,  331,  332,  507. 

V.  Waitt,  447. 
Stoneman  v.  Erie  R.  Co.,  382,  885. 
Storer  v.  Gowen,  23,  27,  61. 
Storey  v.   Dutton,  120. 
Storr  V.  Crowley,  449,  450. 
Stotts  v.  Byers,  136. 
Stout  v.  Yaeger  Milling  Co.,  125,  120. 
Stoveld  V.  Hughes,  482. 
Straiton  v.  Railroad  Co.,  475. 
Strange  v.  Houston  &  T.  C.  R.  Co.,  145. 
Straughan  v.  Fairchild,  141. 


CASES   CITED. 


617 


[The  figures  refer  tc  pages.] 


StrauB  V.  The  Martha,  406. 

V.  RaUway  Co.,  538. 

V.  Wessel,  54G. 
Strauss  v.  Ck>unty  Hotel  &  Wine  Co., 

269. 
Streeter  v.  Horlock,  251,  407. 
Streissguth  v.  National  German-Amer- 
ican Bank,  G2. 
Streubel  v.  Milwaukee  &  M.  R.  Co.,  189. 
Strickland  v.  Barrett,  33. 
Strohn  v.  Railroad  Co.,  318. 
Strong  V.  Adams,  21,  IGO,  197. 

V.  Dodds,  546. 

V.  Hart,  333. 

V.  Tompkins,   107. 

V.  Wooster.  173. 
Strouss  V.  Railway  Co.,  385. 
Stnithers  v.  KendaU,  137. 
Stuart  V.  Bisler's  Assi^ees,  159,  164. 
Sturgis  V.  Keith,  162. 
Sturm  V.  Boker,  7. 
Sturtevant  v.  Jaques,  146. 
Stutz  V.  Railroad  Co.,  567. 
Sue,  The,  506. 
Sullivan  v.  Park,  350,  553. 

V.  Railroad  Co.,  515,  526,  533, 

V.  Thompson,  449,  450. 
Sultan,  The,  34. 

Sultana,  The,  v.  Chapman,  452. 
Sumbolf  V.  Alford,  293. 
Summer  v.  Hamlet,  122,  123. 
Sumner  v.  Williams,  19. 
Sunderland  v.  Westcott,  443, 
Surget  V.  Arighi,  199. 
Surrey,   The,  455. 
Sutton  V.  Buck,  59.  90. 
Swain  v.  Shepherd,  547. 
Swainson  v.  Railway  Co.,  528. 
Swan  V.  Bourne,  293. 

y.  Produce  Bank,  143,  146. 

V.  Railroad  Co.,  509,  510,  534 
Swann  v.  Brown,  250. 
Sweet  V.  Barney,  310,  333,  546. 

V.  Pym,  225. 
Swetland  v.  Railroad  Co.,  369. 
Swett  V.  Brown,  135. 
Swift  V.  Moseley,  187,  190,  197. 

V.  Steamship  Co.,  468.  473,  543,  548. 

V.  Tyson,  135,  137,  157. 
Swindler  v.  Hilliard,  312,  355. 
Sydney,  The,  52G. 
Syeds  v.  Hay,  29,  89.  20a 
Symns  v.  Schotten,  481, 
Synionds  v.  Pain,  313. 


TaCF  Vale  Rail  Co.  v.  Giles,  3ia 

Taft  V.  Bowker.  125. 

V.  Church,  166. 

V.  Montague,  219,  220. 
Taggart  v.  Packard,  129. 
Taintor  v.  Prendergast,  547. 
Talbott  V.  Transportation  Co.,  434. 
Talley  v.  Railroad  Co.,  398,  399. 
Talty  V.  Freedman's  SaviuffS  &  Trust 

Co.,  160. 
Tambaco  v.  Simpson,  349. 
Tan  Bark  Case.  The,  34a 
Tancil  v.  Seaton,  20,  47. 
Tangier,  The,  332.  452,  454. 
TannahiU  v.  Tuttle,  107.  130. 
Taplcy  V.  ilartens,  '>33. 
Tarbell  v.  Railroad  Co.,  504,  505. 

V.  Shipping  Co.,  456,  457,  459. 
Tarmer  v.  McCraw,  26. 
Tate  V.  Meek,  349. 
Tayler  v.  Great  Indian  Peninsula  Ry. 

Co.,  144. 
Taylor  v.  Caldwell.  210. 

V.  Chester,  110. 

V.  Downey,  262,  30a 

V.  Lendey,  90,  96. 

V.  Monnot,  259.  280.  285. 

V.  Pennsylvania  Co.,  518. 

V.  Plumer,  21,  479. 

V.  Railroad  Co.,  409,  410,  415,  436, 
470. 

V.  Sccrist.  239.  240. 

V.  Turner,  135,  146. 
Taylor.  B.  &  H.  Ry.  Co.,  v.  Montgom- 
ery, 403. 
TeaU  V.  Felton,  485. 

V.  Sears,  247. 
Tebbutt  V.  Railway  Co.,  528.  . 
Teilman  v.  Block,  452. 
Terre  Haute  v.  Buck,  538. 

v.  Vanatta,  535. 
Terry  v.  Railroad  Co.,  514. 
Texas  Exp.  Co.  v.  Texas  &  P.  Ry.  Co., 

329. 
Texas  P.  Ry.  Co.  v.  Nicholson,  554. 
Texas  &  P.  R.  Co.  v.  Adams,  470,  47^ 

V.  Alexander,  539. 

V.  Barnliart,  476. 

V.  Best,  500.  52a 

V.  Black.  493. 

V.  Bond,  534. 


618 


CASES  CITED. 


[The  flgnres  refer  to  pages,] 


Texas  &  P.  R,  Co.  v.  Casey,  535. 

V.  Dennis,  513. 

V.  Fergruson,  383. 

V.  Hawkins,  435. 

V.  Mansell,  537. 

V.  Parrish,  472. 
Texas,  etc.,  R,  Co.  y.  Capps,  382,  384. 
Thacher  v.  Pray,  137. 
Thames  Iron-Works  Co.  v.  Patent  Der- 
rick Co.,  104,  233. 
Thayer  v.  Daniels,  125. 

V.  Dwight,  172. 

V.  Hutchinson,  59. 
Thlbaud  v.  Thibaud,  39. 
Thickstun  v.   Howard,  270,   271,   280, 

281. 
Third  Nat.  Bank  v.  Boyd,  49,  62,  155, 

161. 
Thomas  v.  Day,  244. 

V.  Great  Western  R.  Co.,  384. 

V.  Lancaster  Mills,  401,  416. 

V.  Railroad  Corp.,  311.  354,  410,  416. 
449,  492,  540. 
Thompson  v.  Dolliver,  109. 

V.  Dominy,  112. 

V.  Fargo,  546,  549. 

V.  Harlow,  202. 

V.  Lacy,  254,  259,  275. 

V.  Patrick,  134,  151. 

V.  Railroad  Co.,  31,  430,  498. 

V.  Small,  406. 

V.  Stevens,  130. 

V.  Tohiud,  126,  145. 

V.  Truesdale,  513. 

V.  Ward,  265. 

V.  Williams,  22. 
Thomson-Houston  Electric  Co.  v.  Cap- 
itol Electric  Co.,  135. 
Thome  v.  Deas,  54,  55,  84,  86,  183. 

V.  First  Nat.  Bank,  128. 

V.  Tilbury,  35. 
Thornton  v.  Place,  218,  220. 

V.  Turner,  189. 
Thorp  V.  Burling,  60,  91. 

V.  Railroad  Co.,  513. 
Thorpe  v.  Railroad  Co.,  521,  523. 
Thrall  v.  Lathrop,  29. 
Threfall  v.  Berwick,  295. 
Thurston  v.  Railroad  Co.,  503,  505. 
Tibbetts  v.  Flanders,  122. 
Tibby  v.  Railway  Co.,  530. 
Tiedeman  v.  Knox,  147. 
Tiemey  v.  Railroad  Co.,  369,  402. 


Tiffany  v.  Boatman's  Inst,  138. 
Tigress,  The,  480. 
Titsworth  v.  Winnegar,  239,  244. 
Tobin  V,  Railroad  Co.,  528. 
Todd  V.  Figley,  89.  93. 

V.  Railroad  Co.,  497,  498. 
Toledo,  P.  &  W.  Ry.  Co.  v.  Merrinmn, 

472. 
Toledo,  W.  &  W.  R.  Co.  v.  Beggs,  495, 
496. 

V.  Brooks,  495. 

V.  Elliott,  337. 

V.  Hamilton.  402. 

V.  Hammond,  381,  382. 

V.  Lockhart,  325. 

V.  Thompson.  402,  403. 

V.  Wright  535,  536. 
Tolman  v.  Abbot  470. 
Tombler  v.  Koelling,  29. 
Tome  V.  Parkersburg  R.  Co.,  144. 
Tomlinson  v.  Railroad  Co.,  567. 
Tompkins  v.  Railroad  Co.,  526,  528. 

V.  Saltmarsh,  25,  26,  31,  61,  63. 
Torpey  v.  Williams,  382. 
Torpy  V.  Railway  Co.,  495. 
Towanda  Coal  Co.  v.  Heemam,  209. 
Tower  v.  Railroad  Co.,  355,  396,  397, 

399. 
Towler  v.  Lock,  200. 
Towne  v.  Wiley,  17,  43,  191. 
Townsend   v.   RaUroa.l  Co.,  512,   536, 
537. 

V.  Rich,  29. 
Towson  V.  Havre  de  Grace  Bank,  280, 

284,  285,  298. 
Tracy  v.  Pullman  Car  Co.,  262. 

V.  Wood,  27,  61,  63-65. 
Traders'  Bank  of  Rochester  v.  Bradner, 

140. 
Transportation  Co.  v.  Downer,  31. 
Transportation  Line  v.  Hope,  313. 
Travis  v.  Thompson,  346. 
Treadwell  v.  Davis,  130,  151,  171,  172. 
Trefftz  V.  Canelli,  28.  33,  51. 
Treibor  v.  Burrows,  28G. 
Tremont  Coal  Co.  v.  Manly,  60. 
Trent  &  M.  Nav.  Co.  v.  Ward,  311,  357, 
358. 

V.  Wood,  310. 
Trevelen  v.  Northern  Pac.  R.  Co.,  61. 
Trigg  V.  RaUway  Co..  565. 
Trotter  v.  McCall,  19t». 

V.  White,  182. 


CASES   CITESD. 


619 


[The  figures  refer  to  pages.] 


Trowbridge  v.  Chapin,  316. 

Truex  v.  Railway  Co.,  494. 

Trust  V.  Pirsson,  232. 

Trustees  of  Iowa  Ck)UeKe  v.  Hill,  142. 

Tucker  v.  Biimngton,  107,  124. 

V.  Humphrey,  481. 

V.  New  Hampshire  Sav.  Bank  In 
Concord,  125. 

V.  Railroad  Co.,  404. 

V.  Taylor,  231-233. 
Tuckerman  v.  Brown,  200. 
Tudor  V.  Lewis,  2G, 
Tunnel  v,  Pettijohn,  322,  373. 
Tunney  v.  Railway  Co.,  49(5. 
Tomer  v.  Railroad  C^.,  318,  471, 

V.  Treadway,  138. 
Turney  v.  Wilson.  307. 
Turrell  v.  Crawley,  294. 
Tuttle  V.  Campbell,  3, 

V.  Robinson,  121. 
Tuxworth  V.  Moore,  12,  122,  12a 
Tyler  v.  Freeman,  197. 

V.  Ulmer,  16. 
Tyly  V.  Morrice,  445. 
Tyng  V.  Commercial  Warehouse  Co., 

162. 
Tyrrell  v.  Morris,  117. 


u 


UHman  v.  Barnard.  151. 

V.  State,  26G. 
Ulmer  v.  Ulmer,  251. 
Ulrich  V.  Railroad  Co.,  531. 
Uncle  Sam,  Tlie,  517. 
Union  Bank  of  Georgetown  v.  Laird, 

150. 
Union  Exp.  Co.  v.  Graham,  325,  355, 
416. 
V.  Ohleman,  449. 
V.  Shoop,  34G. 
Union  Freight  R.  Co.  v.  Winkley,  333. 
Union    Gold-Mining    Co.    v.    National 

Bank,  110. 
Union  Pac.  R.  Co.  v.  Meyer,  456. 
V.  Nichols,  491,  495,  496. 
V.  Rainey,  405,  415. 
V.  U.  S.,  337,  344. 
Union  Railroad  &  Transp.  Co.  v.  Riegel, 

451. 
Union  Steamboat  Co.  t.  Knapp,  449, 
454. 


Union  Trust  Co.  v.  Rlgdon,  158,  184- 

IGG. 
U.  S.  V.  Belew,  488. 

V.  Bromley,  484. 

V.  Easson,  484. 

T.  Graff,  249. 

V.  Lee,  485. 

v.  Morrison,  488. 

V.  Power,  302. 

V.  Wilder,  344. 

V.  Yukers,  26. 
United  States  Exp.  Co.  ▼.  Backman, 
310,  355,  416,  425. 

V.  Haines,  469,  559. 

V.  Harris,  429. 

V.  Keefer,  451. 

V.  Meiuts,  151. 

V.   Root,  411. 

V.  Rush,  470. 
Upshare  v.  Aidel,  309. 
Urquhart  v.  Mclver,  115,  198^ 


Vail  V.  Railroad  Co.,  363. 

Vale  V.  Bayle,  547. 

Valette  v.  Mason,  142,  158. 

Vallaire  v.  Hartshorne,  136. 

Van  Arminge  v.  Peabody,  114. 

Van  Blareom  v.  Broadway  Bank,  113, 

123,  130. 
Van  Buskirk  v.  Purlnton,  344. 

V.  Roberts,  510,  517,  540. 
Vance  v.  Throckmorton,  261,  272,  280. 

289. 
Vanderzee  v.  Willis,  112. 
Vandrink  v.  Archer,  13. 
Van  Dusan  v.  Railway  Co.,  508. 
Vane  v.  Rigden,  117. 
Van  Horn  v.  Kermit,  381,  394,  462. 
Van  Kirk  v.  Railroad  Co..  508.  514. 
Van  Natta  v.  Insurance  Co.,  412. 
Van  Riper  v.  Baldwin,  125. 
Van   Santvoord   v.   SL  John,  448,  45.5, 

468. 
Van  Winkle  v.  Steamship  Co.,  35. 
Varble  v.  Bigley,  302,  305,  313. 
Vasse  V.  Smith,  S3. 
Vaughan  v.  Men  love,  25,  89,  92. 

V.  Railroad  Co..  344.  345. 

V.  Webster,  28,  30.  31.  202. 
Vaupell  V.  Woodward,  126,  164,  169. 


620 


CASES   CirETD. 


[The  figures  refer  to  pages.] 


Vaylor  v.  Mangles,  248. 

Vedder  v.  Fellows,  514. 

Venables  v.  Smith,  200. 

Vere  v.  Smith,  240,  251. 

Verner  v.  Sweitzer.  305,  310. 

Vertue  v.  Jewell,  482. 

Vick  T.  Railroad  Co.,  49a 

Vickers  v,  Battershall,  133. 

Vicksburg   Liquor  &  Tobacco   Co.    v. 

United  States  Exp.  Co.,  325. 
Vicksburg  &  M.  R.  Co.  v.  Ragsdale, 

408,  410,  559. 
Victorian  Ry.  Com'rs  v.  Coultas,  564. 
Vidette,  The,  480. 

Vigo  Agricultural  Soc.  v.  BrumfieL,  92. 
Vincent  v.  Chicago  &  A.  R.  Co.,  335, 
340. 

V.  Cornell,  198. 

V.  Rather,  240,  478. 
Viner  v.  Steamship  Co.,  477,  553. 
Vinton  v.  King,  142. 

V.  Railroad  Co.,  503,  515,  533. 
Violett  V.  Stettinius,  406. 
Virginia,  The,  v.  Kraft,  346. 
Virginia  &  T.  R.  Co.  v.  Sayers,  416. 
Vogelsang's  Adm'r  v.  Pisher,  149l 
Volunteer,  The,  349. 
Vose  V.  Railway  Co.,  495,  528. 


W 

Wabash  R.  Co.  v.  Brown,  421,  425,  431. 

V.  Harris,  435,  441. 

V.  Savage,  523. 
Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illinois, 
341. 

V.  Jaggerman,  472. 

V.  McCasland,  551. 

V.  Pratt,  403,  552. 

V.  Wallace,  528. 
Waddle  v.  Owen,  134,  isa 
Wade  V.  Wheeler,  315. 
Wadsworth  v.  Alcott,  3. 
Wagner  v.  Marple,  126. 

V.  Railway  Co.,  493. 
Waite  V.  Railway  Co.,  523,  527, 
Wakeman  v.  Gowdy,  157. 
Waland  v.  Elkins,  541. 
Walcot  V.  Pomeroy,  21,  22. 
Walcott  V.  Keith,  107,  121. 
Walden  v.  Finch,  23a 
Waldie  v.  Doll,  107. 


Waldron  v.  Chicago  &  N.  W.  R.  C50., 

382,  385,  387. 
Walker  v.  Birch,  112. 

V.  Railroad  Co.,  145,  317,  513. 

V.  Skipwith,  307,  311. 

V.  Staples,  11,  108,  171,  172. 

V.  Wilkinson,  21. 
Wallace  v.  Berdell,  165. 

V.  Cook,  76. 

V.  Finnegan,  163. 

V.  Matthews,    34. 

V.  Railway  Co.,  324. 

V.  Woodgate,  223. 
Waller  v.  Parker,  24,  218,  236. 
Walling  V.  Potter,  257,  260,  265,  268, 

271,  275. 
Wallingford  v.  Railroad  Co.,  354. 
Walsh  V.  The  H.  M.  Wright,  378,  394, 
398. 

V.  Porterfield,  282,  283. 

V.  Railroad  Co.,  517,  5&4. 
Walston  V.  Myers,  313,  550. 
Walter  v.  Ross,  482. 
Walther  v.  Wetmore,  233. 
Wanamaker  v.  Bowes,  194. 
Warbrooke  v.  Griffin,  269. 
Warburton  v.  Railway  Co.,  528k 
Ward  V.  Howard,  139. 

V.  McCauley,   22. 

V.  Railroad  Co.,  534. 

V.  Sumner,  107,  108. 

V.  Vauderbilt,  517. 

V.  Ward,  173. 
Warden  v.  Greer,  369. 
Wards  C.  &  P.  L.  Co.  v.  Elkins,  556. 
Wareham  Bank  v.  Burt,  79. 
Ware  River  R.  Co.  v.  Vibbard,  347. 
Waring  v.  Indemnity  Fire  Ins.  Co.,  215. 
Warner  v.  Fourth  Nat.  Bank,  135. 

V.  Martin,  114,  134. 

V.  Railroad  Co.,  391. 

V.  Transportation  Co.,  70,  368. 
Warren  v.  Emerson,  108. 

V.  Leland,   13,   196. 

V.  Railroad  Co.,  500,  501. 
Washburn  v.  Jones.  280. 

v.  Pond,  165,  167. 
Washington,  A.  «&  G.  R.  Co.  v.  Brown, 

506. 
Washington  Bank  v.  Lewis,  137. 
Washington  &  G.  R.  Co.  v.  Harmon's 

Adm'r,  522,  538. 
Wataga,  The,  517. 


CASES   CITED. 


621 


[Tbo  figures  refor  to  pajjos.] 


Waterbury  v.  Railroad  Co.,  492,  4U7, 

498. 
Waterman  v.  Gibson,  41,  44. 

V.  Robinson,  13,  60,  90. 
Waters  v.  Assurance  Co.,  215,  412. 
Watkins  v.  Railroad  Co.,  475,  528,  540. 

V.  Roberts.   24.   30,    63,   79,   92-94, 
100,  203,  204. 
Watkinson  v.  Laughton,  364,  550. 
Watson,  Kx  parte,  481. 

V.  Cross,  275,  277,  295. 

V.  Duykinck,  517. 

V.  Railway  Co.,  469,  471,  518,  519, 
529,  532. 

V.  Randall,  141. 

V.  Sidney  F.  Woody  Printing  Co., 
138. 

▼.  Smith,  165. 
Watts  V.  Canal  Co..  314. 

V.  Sweeney,  227. 

V.  Ward,  52. 
Way  y.  Davidson,  151,  172. 

V.  Railway  Co.,  496,  513. 
Wear  v.  Gleason,  300. 
Weaver  v.  Barden,  138. 
Webb,  The,  313. 
Webb  V.  Winter,  546. 
Webber  v.  Cogswell.  227. 
Webster  v.  Railroad  Co.,  500, 

V.  Upton,  127. 
Weed  V.  Bamey,  451,  452,  459. 

V.  Railroad  Co.,  383,  472,  517,  553. 
Weeks  v.  Railroad  Co.,  392. 
Weens  v.  Delta  Moss  Co.,  122. 
Wehmann  v.  Railway  Co.,  432,  465,  474. 
Weightman  v.  Railway  Co.,  522. 
Weiller  v.  Railroad  Co.,  425,  429. 
Weir  V.  Express  Co.,  429.  430. 
Weirick   v.   Mahoning   County    Bank, 

142,  143. 
Weir  Plow  Co.  v.  Porter.  7,  10. 
Weisenger  v.  Taylor,  285,  289,  292. 
Welch  V.  Mohr,  191. 

V.  Pullman  Palace-Car  Co.,  262. 

V.  Railroad  Co.,  369,  415. 
Weldon  v.  Gould,  231. 
Weller  v.  Railway  Co.,  538. 
Welles  V.  Railroad  Co.,  531. 

V.  Thornton,  35. 
Wellington  v.  Wentworth,  192. 
Wellman  v.  Railway  Co.,  331,  507. 
Wells  V.  Archer,  120. 

v.  Elxpress  Co.,  479. 


Wells  V.  Navigation  Co.,  28,  303,  313, 

421. 
V.  Railroad  Co.,  421,  423. 
V.  Steamship  Co.,  368. 
V.  Thomas,  346. 
v.  Wells,  155. 
WeUs,  Fargo  &  Co.  v.  Battle,  474. 
Welsh  V.  Railroad  Co.,  351,  375,  421. 
Wentworth  v.  Day,  39.  52. 

V.  McDuflie.  187,  190,  191,  195,  202. 
204,  513. 
Wentz  V.  Railroad  Co.,  513. 
Wemwag  v.  Railroad  Co.,  477,  478. 
West  V.  The  Berlin,  303. 
V.  Crary.  108. 
V.  Murph,  80. 
V.  The  Uncle  Sam,  517. 
West  Chester  &  P.  R.  Co.  v.  Miles,  502, 

506. 
Westeott  V.  Fargo.  425,  442. 

V.  Thompson,  6. 
Western  Manuf'g  Co.  v.  The  Guiding 

Star,  558. 
Western  Ry.  Co.  v.  Harwell.  47G. 
Western  Transp.  Co.  v.  Barber,  34,  349, 
479. 
V.  Downer.  355. 
V.  Hoyt,  346. 
V.  Newhall,  438,  442,  447, 
Western  Union  R.  Co.  v.  Wagner,  117. 

123,  148,  149. 
Western  &  A.  11.  Co.  v.  Exposition  Cot- 
ton   Mills,   367,   434,   430,   464, 
470. 
V.  McElwee,  468,  469,  473. 
Westervelt  v.  Gregg,  189. 
Weston  V.  Bear  River  &  A.  Water  & 
INIining  Co.,  144. 
V.  Railroad  Co.,  525.  558. 
Westphal  v.  Ludlow.  157. 
Weyand  v.  Atchison.  T.  &  S.  F.  Ry.  Co., 

478. 
Weyh  V.  Boylan,  143. 
Weyland  v.  Elkins,  473. 
Wheeler  V.  Guild.  142. 
V.  Irrigation  Co.,  314. 
V.  Newbould,  157,  165.  166. 
V.  Railroad  Co.,  308. 
Wheeler  &  Wilson  Manuf'g  Co.  v.  Hell, 

6. 
Wheelock  v.  Kost  154. 

V.  Wheelwright,  89,  186,  187,  191, 
194. 


622 


CASES  CITBO. 


[The  figures  refer  to  pages.] 


Whelan's  Ex'r  v.  Kinsley's  Adm'r,  132. 
Wbeldeu  v.  Chappel,  187,  191. 
^^•hitake^  v.  Sumner,  12,  108,  122,  129, 

134,  164. 
Whitbeck  v.  Schuyler,  316,  318. 
White  V.  Bascom,  197,  214,  302,  549. 

V.  Boulton,  517. 

V.  Brantley,  2L 

V.  Garden,  11& 

V.  Griffin,  197. 

V.  Humphery,  45,  180,  459. 

V.  McDonough,  491. 

V.  The  Mary  Ann,  313. 

V.  Mitchell,  481. 

V.  Phelps,  11,  120,  15& 

V.  PhUbrlck,  91. 

V.  Railroad  Co.,  470,  471,  495. 

V.  Smith,  225,  226. 

V.  Vann,  346. 

V.  Winnisimmet  Co.,  311,  367. 
Whitehead  v.  Anderson,  481. 

V.  Vanderbilt,  94. 
Whitemore  v.  Haroldson,  273,  298,  300. 
White  Mountain  R.  Go.  v.  Bay  State 

Iron  Co.,  132. 
Whitesides  v.  RusselL,  354. 
White  Water  R.  Co.  v.  Butler,  537. 
Whitfield  V.  Le  Despencer,  487. 
Whitin  V.  Paul,  157. 
Whiting  V.  Chicago,  M.  &  St  P.  Ry. 

Co.,  38. 
Whitlock  V.  Heard,  222,  25a 
Whitmore  v.  Bowman,  311. 

V.  The  Caroline,  383. 
Whitney  v.  Beckford,  345. 

V.  Car  Co.,  312,  400. 

V.  First  National  Bank,  49. 

V.  Insurance  Co.,  332. 

V.  Lee,  51,  57,  61. 

V.  State  Bank,  120. 

V.  Tibbits,  123. 
Whittaker  v.  Bank,  162. 
Whitteker  v.  Charleston  Gas  Co.,  16G. 
Whitteton  Manuf  g  Co.  v.  Memphis  & 

O.  R.  P.  Co.,  552. 
Whittier  v.  Smith,  68,  100. 
Whittle  V.  Skinner,  107. 
Whitwell  V.  Brigham,  163. 

V.  Wells,  198. 
Whitworth  v.  Railroad  Co.,  435. 
Wibort  V.  Railroad  Co.,  .327,  410. 
Wlckham  v.  Morehouse,  120. 
Wiggins  V.  Hathaway,  313,  485-4S7. 


Wiggins  Ferry  Co.  v.  Chicago  &  A.  R. 

Co.,  472. 
Wightman  v.  Railway  Co.,  513. 
Wilbert  v.  Railroad  Co.,  409. 
Wilbraham  v.  Snow,  186,  187,  196,  197. 
WUeox  V.  Fairhaven  Bank,  173-175. 

V.  Hogan,  89,  90,  98. 

V.  Parmelee,  361,  407,  472, 
Wilde  V.  Transportation  Co.,  441. 
Wiley  V.  Bank,  49. 
Wilhelm  v.  Schmidt,  163. 
Wilkes  V.  Ferris,  124,  128,  130, 

V.  Hughes,  211. 
Wilkins  v.  Earle,  285. 
Wilkinson  v.  Coverdale,  53. 

V.  King,  187. 

V.  Verity,  57,  76,  97. 
Willard  v.  Bridge,  32,  209,  243. 

V.  Reinhardt,  259-261. 
Willcocks,  Ex  parte,  153. 
Willett  V.  Rich,  241,  242. 
Willey  V.  Allegheny  City,  239. 
William  v.  Gwyn,  197. 
Williams  v.  Allsnp,  228,  229. 

V.  Branson,  312. 

V.  Cranston,  550. 

V.  Grant,  351,  359,  363. 

V.  Hodges,  481. 

V.  Holcombe,  210,  211. 

V.  Holland,  240. 

V.  lugersoll,  125. 

V.  Jones,  11. 

V.  Keokuk  Co.,  394, 

V.  McGrade,  82. 

V.  Packet  Co.,  398,  399. 

V.  Price,  157. 

V.  Smith,  140,  158. 

V.  Theobald,   334. 

V.  Vanderbilt.  517,  563,  565. 
Williamson  v.  Culpepper,  120. 

V.  New  York,  N.  H.  &  EL  R.  Oo., 
240,  241. 
Willis  V.  Fry,  144. 

V.  Railway  Co.,  415. 
Willraott  V.  Railway  Co.,  522. 
Willner  v.  Morrell,  243. 
Willock  V.  Railroad  Co.,  416,  519l 
Wills  V.  BaiTister,  223. 
Wilmot  V.   Smith,   221. 
Wilson  V.  Anderton,  33,  79,  100. 

V.  Brannan,    108. 

V,  Brett,  24,  25,  08,  94,  202. 

T.  Doster,  117. 


CASES   CITED. 


623 


[The  figures  refer  to  papes.] 


Wilson  V.  Erpress  Ck)^  479. 

V.  Guyton,  39,  52. 

V.  Hamilton,  311,  367.  375-377. 

V.  Kymer,  333. 

V.  Little,  107,  llS-120,  144,  IGl, 
166,  167. 

V.  McLaughlin,    189. 

V.  Martin,  22,  222,  223. 

V.  Peverly.  487. 

V.  Railroad  Co.,  26,  31,  69,  241, 
317,  346,  390,  391,  416,  421, 
459,  475,  518,  540,  55a 

V.  Wilson,  44,  547. 
Wiltenberger  v.  Beacom,  215, 
Wilton  V.  Railroad  Co.,  498. 
Winchester  v.  Ball,  107. 
Wing  V.  New  Yorli  &  E.  R.  Co.,  93, 

V.  Railroad  Co.,  402. 
Winkfield  v.  Pacliington,  316,  317. 
Winliley  v.   Foye,  75. 
Winslow,  The  R.  G.,  244. 
Winslow,  The  Richard,  453. 
Wtnslow  V.   Fletcher.   130. 

V.  Railroad  Co.,  457,  477,  478. 
Wintermute  v.  Clark,  257.  250.  2G5. 
Winthrop  Sav.  Bank  v.  Jackson.  1G4. 
Wintiingham  v.  Hayes,  29,  31. 
Wiser  v.  Chesloy,  261,  262,  300. 
Witbeck  v.  Holland,  449. 
Witowski  V.  Brennan,  16,  46,  183. 
Witting  V.  Railroad  Co.,  354. 
Wolf  V.  Express  Co.,  359. 

V.  Hough.  346. 

V.  Shannon,  14- 

V.  Wolf,  111. 
Wolfe  V.  Railway  Co.,  480,  5-^. 
Wood  V.  Bodine,  46. 

V.  Crocker,  351,  457.  458. 

V.  Dudley.  109. 

V.  McClure.  24.  27.  92,  93, 

V.  Matthews,  158. 

V.  Railway  Co.,  465,  53& 

V.  Yeatman,  118. 
Woodard  v.  Fitzpatrick,  153,  158. 
Wooden  v.  Austin,  313. 
Woodger  y.  Railway  Co..  558. 
Woodhull  V.  Holmes.  140. 
Woodman  v.  Hubbard,  89.  189.  191. 

V.  Nottingham.  197. 
Woodruff  V.  Painter.  180. 
Woodruff    Sleeping    &    Parlor    Coach 

Oo.  V.  Diehl.  262,  264,  312. 
Woods  V.  Devin,  381. 


Woods'  Appeal,   117,   145. 
Woodward  v.  Birch,  281. 

V.  Railroad  Co.,  467,  471. 

V.  Seman.s,   8. 
Woodw<nth  v.  Morris,  108* 

V.   Morse,  279,  281. 
Woolf  V.  Beard.  527. 

V.  Bernero.  61. 
Woolsey  v.  Bailey.  5^18. 

V.  Railroad  Co.,  496. 
Wooster  v.  Tarr.  3.'i3. 
Worcester  Nat.  Bank  v.  Checney.  ViH. 
Work  V.  Tibbits,  154. 
Works  V.  Meritt,  142. 
Wonnley  v.  Lowry,  138. 
Worth  V.  Edmonds.  363. 
Worthington  v.  Torraey,  128,  159, 
Wren  v.  Kirton,  182. 
Wright  V.  Bank  of  the  Metropolis,  16L 

V.  Bircher,  108. 

V.  Caldwell,  319. 

V.  Paine,  48. 

V.  Railway  Co.,  507,  529,  535, 

V.  Ross,   107. 

V.  Snell,  347. 

V.  Solomon.  114, 
Wyckoff  v.  Ferry  Co..  311,  356. 

V.  Southern  Hotel  Co..  294. 
Wyeth    V.    National    Market    Bank    of 

Brighton,   172. 
Wyld   V.   Pickford.   24,   326.   342,   414, 

553. 
Wylde  V.  Railroad  Co.,  473,  541. 
Wyman  v.  Railroad  Co.,  474,  514,  533, 

535. 
Wymore  v.  Mahaska  Co.,  52S. 
W.  &  A.  R.  Co.  V.  Kelly,  546. 


Yale  V.  Oliver,  24,  93,  23a 

V.  Saunders,  194. 
Yarnell  v.  Railroad  Co.,  522,  523. 
Yates  V.  Railroad  Co.,  565,  567. 
Yeatman  v.  Savings  InsL,  150,  171. 
Yenni  v.  McNamee,  120. 
Yeomans  v.  Navigation  Co.,  494. 
Yerkes  v.  Sabiu,  355. 
Yoekum  v.  Dryden,  319. 
York  V.  Grindstone,  27L 

v.  Railroad  Co..  432. 
York  Co.  V.  Central  R.  Co.,  316,  346. 
Yorke  v.  Grenaugh,  271,  344. 


621 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Yorton  T.  Railway  Co.,  512,  563,  565, 

500. 
Youl  V.  Harbottle,  187,  209. 
Young  V.  Moeller,  333. 

V.  Railway  Co.,  480,  540. 
Youngs  V.  Lee,  136,  139. 
Youqua  V.  Nixon,  41L 
Yungnuuin  t.  Bri^mann.  160, 


Z 


Zeigler  v.  Railroad  Co.,  495,  528. 
Zellweger  v.  CaEfe,  136. 
Zenobia,  The,  565. 
Zimpleman  v.  Veeder,  158,  166. 
Zinn  V.  Steamboat  Co.,  454,  455. 
Zuck  V.  Culp,  75. 


INDEX. 


[the  figures  refer  to  pages.] 


A 

A.OCBPTANOE, 

by  bailee,  necessity.  18. 
actual  or  constructive,  14, 
by  bailee  In  bailments  for  hire,  183. 
of  goods  by  common  carriers,  314. 
necessity,  818. 
duty  to  accept  goods  offered,  321-327. 

dependent  on  extent  of  profession,  821. 
dependent  on  extent  of  facilities,  324. 
dependent  on  condition  of  goods,  325. 
dependent  on  prepayment  of  charges,  326. 
dependent  on  shipper's  authority  to  deliver,  828. 

ACOBSSIOr^, 

title  by,  to  materlak  used  in  repairs,  236. 

ACTION, 

by  bailor,  10,  21 

right  of  bailor  and  bailee  to  sue  in  bailments  for  bailor's  sole  benefit,  0S-4(k 

commodatum.  right  of  action  against  third  person,  90. 

against  third  persons  by  pledgor,  131. 

pledgee's  right  of  action,  150. 

on  debt  by  pledgee,  163. 

bailments  for  hired  use,  right  of,  196. 

bailor  cannot  maintain  trover  or  replevin  during  term  of  hire,  197, 

bailments  for  hired  service,  right  of,  214. 

against  common  caiTier  for  refusal  to  caiTy,  308. 

carrier's  right  of  action  for  injury  to  goods,  412,  418. 

against  carriers,  542-567. 

against  carriers  of  goods.  542-559. 
the  parties,  542-551. 

by  person  contracting  with  carrier.  543. 

consignee  presumed  to  havp  contracted  with  carrier,  B46w 
presumption  where  consignee  has  no  Interest  in  goods,  548. 

LAWBAILM. — 40  (625; 


626  INDEX. 

[The  figures  refer  to  pages.] 

ACTION— Continued, 

by  owner,  548. 

for  delay  in  delivery  and  refusal  to  receive,  549. 
for  loss,  injury,  or  delay,  parties  defendant,  550. 
for  refusal  to  receive,  parties  defendant,  551. 
connecting  carriers,  parties  defendant,  551. 
form  of,  551-554. 

ex  delicto  or  ex  contractu,  551. 

for  refusal  to  receive  goods  must  be  ex  delicto,  651. 
the  pleadings,  554. 
against  carriers  of  passengers,  5G0--567. 

ACT  OF  GOD, 

what  is,  356. 

distinguished  from  inevitable  accident,  357. 

Illustrations,  302. 

cases  not  within,  363. 

inherent  nature  considered  as,  369. 

carrier  not  liable  for  loss  by,  356-364. 

must  be  proximate  and  exclusive  cause  to  excuse,  858. 

negligence  of  carrier  contributing,  359. 

deviation  from  usual  course  by  carrier,  859-361, 

unreasonable  delay  by  carrier,  361. 
liability  of  inulieeper  for  loss  by,  281. 

AGENTS, 

as  parties  to  bailments,  18. 

whether  principal  or  agent  is  bound,  19  (note  65). 
authority  to  receive  bailment,  46  (note  44),  48. 
of  common  carrier,  delivery  to,  316. 

authority  to  make  through  contracts,  470. 

AGISTORS, 

rights  and  liabilities,  250. 
lien  of,  222,  224. 

ANIMALS, 

carriers  of,  liability,  870-377. 

ASSENT, 

to  notice  by  common  carrier  limiting  liability,  necessity,  437-^444. 

ASSESSMENTS, 

on  stocli,  liability  of  pledgee,  154. 

ASSIGNMENT, 

of  pledgor's  Interest,  129. 
of  pledgee's  interest,  134. 
bailee  for  hire  has  assignable  Interest  197. 


INDEX.  62i 

[The  figures  refer  to  pages.] 


ATTACHMENT, 

right  to  attach  property  hired,  180. 

of  pledgor's  interest  at  common  law,  130. 

ATTORNMENT, 

right  of  bailee  to  attorn  to  stranger,  22. 


BAGGAGE, 

carriers  of,  liability,  377^01. 

of  gratuitous  passenger,  liability  for,  378. 

fare  of  passenger  is  compensation  for  baggage,  300. 

what  Is,  378-384. 

articles  held  to  be  baggage,  381,  382. 

articles  held  not  to  be  baggage,  383,  384. 

effect  of  custom  and  usage,  384. 

liability  of  carrier  for  merchandise  shipped  as,  384. 

passenger  must  be  owner,  389,  390. 

passenger  need  not  accompany  baggage,  390,  391. 

compensation  for  goods  unaccompanied  by  passenger,  390,  391, 

in  custody  of  passenger,  liability  of  cariner,  392-400. 

right  of  passenger  to  have  access  to  baggage,  394. 

liability  of  sleeping-car  companies,  400,  401. 

BAGGAGE  CHECKS, 

effect  of  notices  limiting  liability  on,  443,  444, 

BAILEE, 
who  is,  6. 

estopped  to  dispute  bailor's  title,  22. 
care  to  be  exercised  bj%  23. 
must  act  in  good  faith,  28. 
liability  for  conversion,  29. 
obligation  to  redeliver,  30. 

BAILMENT, 
defined,  1. 
historical  outline,  2. 
Coggs  V.  Bernard,  2. 
derivation  of  term,  3. 
what  constitutes,  3  (note  7). 
general  ownership  remains  in  bailor,  B. 
distinguished  from  sale,  6. 

necessity  of  redelivery  or  delivery  over,  3,  4  (note  10). 
delivery  up  of  identical  property,  necessity.  6. 


628  IKDEX. 

[The  figures  refer  to  pages.] 

BAILMENT— Continued. 

change  of  form,  7  (note  17). 

wheat  stored  in  elevator,  baiiment  or  sale,  7  (note  17). 

mutuum,  8. 

with  option  to  purchase,  9. 

general  principles  common  to  all  bailments,  10. 

subject  must  be  personalty,  10,  11. 

what  may  be  bailed,  11. 

property  not  in  existence,  11. 

must  be  a  delivery,  actual  or  constructive,  10,  12. 

must  be  a  voluntary  acceptance  by  bailee,  10,  13. 
whether  founded  on  contract,  13. 
consideration  in  bailments  for  sole  benefit  of  bailor,  15. 

must  be  competent  parties,  10,  16. 

by  operation  of  law,  capacity  of  parties,  18. 

title  of  bailor,  10,  20. 

right  of  property  remains  In  bailor,  10.  21. 

right  of  action  in  bailor,  10,  21. 

bailee  estopped  to  dispute  bailor's  title,  10,  22. 

bailor  must  not  expose  bailee  to  danger,  10,  23. 

bailee  must  exercise  due  care,  10,  23. 

right  to  modify  liabilities  by  contract,  10,  27. 

bailee  must  exercise  good  faith,  11,  28. 

bailee  must  deliver  up  property,  11,  30. 
Roman  classification,  35. 

depositum  defined,  35. 

mandatum  defined,  35 

commodatum  defined,  36. 

pignus  defined,  36. 

mutuum  defined,  36. 

locatio  defined,  36. 
classification  with  reference  to  benefit,  37. 
BAILMENTS  FOR  BAILEE'S  SOLE  BENEFIT, 
in  general,  81-^3. 
establishment  of  relation,  83-86. 
must  be  created  by  contract,  83. 

consideration,  84. 
must  be  without  Intended  compensation  to  bailor,  81. 
must  be  for  exclusive  use  of  bailee,  84,  85. 
general  requisites,  85,  86. 
rights  and  liabilities  of  parties,  86. 

ordinary  and  extraordinary  expenses,  87. 

liability  of  lender  for  defects,  88. 


INDEX.  &2d 

[The  flares  refer  to  pagea] 

BAILMENTS  FOR  BAILEE'S  SOLE  BENEFIT— ConUnued, 
fraud  in  procurmg  loan,  liability  of  bailee,  88. 
right  of  borrower  to  use  property,  80. 
right  of  action  against  tliircl  persons,  89. 
borrower  must  exercise  more  than  ordinary  care,  9Z 
right  to  vary  liability  by  contract,  94. 
termination  of  loan,  95-100. 
precarium,  96. 

redelivery  of  property  with  its  increments,  98-10(1. 
BAILMENTS  IX>R  BAILOR'S  SOLE  BENEFIT, 
depositum  and  mandatum,  38. 
deposite  and  mandate  distinguished,  41, 
establishment  of  relation,  42. 
by  contract,  42. 
by  operation  of  law,  43. 
Involuntary  deposits,  44. 
abseiiee  of  intended  compensation,  44. 
general  retiuisites,  46. 
special  bank  deposits,  46. 
natiCHial  banks,  49. 
rights  and  liabilities  of  parties,  50. 
In  general,  50. 

bailor  must  indemnify  bailee  against  expenses,  51. 
bailee  may  bind  t>allor  by  contract,  52. 
damage  sustained  in  executing  bailment,  on. 
liability  for  misfeasance  and  nonfeasance,  54. 
right  of  bailee  to  use  property,  57. 
special  property  of  bailee,  possessory  interest,  right  of  action,  58. 

right  of  bailor  to  sue,  60. 
bailee's  liability  for  negligence,  61 
special  contract,  51,  67. 
bailee    cannot    contract   against    liability    for   gross   negligence   or 

fraud,  51. 
what  constitutes  gross  negligence,  62,  63. 
liability  where  bailee  takes  same  care  of  bailed  property  as  of  hto 

own,  64. 
knowledge  of  bailee's  character  and  manner  of  keeping  goods,  67. 
quasi  bailees,  68. 
bailments  demanding  skill,  68. 
liability  for  sealed  packages,  69. 
Illustrative  cases,  70. 
case  illustrating  effect  of  local  custom,  Tl. 
ease  illustrating  effect  of  a  second  bailment,  72, 


630  INDEX 

[The  figures  refer  to  pages.] 

BAILMENTS  FOR  BAILOR'S  SOLE  BENEFIT— Continued, 
illustrative  cases  of  special  bank  deposits,  72. 
termination,   73. 

by  fraud,  performance,  73. 

by  mutual  consent,  73. 

by  option  of  either  party,  74. 

by  bailee's  wrong,  75. 

by  death  of  either  party,  76. 

by  bankruptcy,  77. 

by  change  of  state  of  parties,  77. 
redelivery,  78. 

innkeeper,  liability  as  gratuitous  bailee,  299. 
carriers  without  liire,  302. 

BAILMENTS  FOR  MUTUAL  BENEFIT, 
in  general,  101,  102. 
pignus  or  pledge,  101-176. 
pledge  defined,  102. 
establishment  of  relation,  109. 
title  of  pledgor,  113-118. 
what  may  be  pledged,  118-121. 
delivery  essential  to  pledge,  121-128, 
rights  and  liabilities  of  pledgor,  128-133. 
rights  and  liabilities  of  pledgee  before  default,  133-162. 
rights  and  liablities  of  pledgee  after  default,  162-170. 
termination  of  pledge,  170-177. 
locatio,  or  hiring,  177-253. 

establishment  of  relation,  179-184. 
rights  and  liabilities,  184. 

locatio  rei,  or  hire  of  things  for  use,  184-212. 
locatio  operis,  or  hire  of  labor  and  services,  212-253. 
termination  of  relation,  252. 
innkeepers,  254. 

liability  for  goods  held  under  lien,  299. 
liability  of  common  carriers  as  ordinary  bailees,  401-407. 

BANKRUPTCY, 

termination  of  bailment  by,  77. 

BANKS, 

ordinary  deposit  of  money  not  a  bailment,  40l 
depositaries  of  special  deposits,  39. 
special  bank  deposits,  47. 

power  to  receive  special  deposits,  48. 
national  banks,  49. 


INDEX.  631 

[The  fignires  refer  to  pagea] 

BANKS— Con  tin  ued. 

liability  for  loss  through  fraud  of  its  agents,  48. 
illustrative  cases,  72. 
pledge  of  savings  bank  boolt,  125. 

BILL  OF  LADING, 

delivery  in  pledge,  127. 

title  of  pledgee  of,  146. 

as  contracts  and  receipts,  438, 

notices  Ln,  limiting  liability,  efCect,  440. 

BOARDING  HOUSE  KEEPEBS, 
not  innkeepers,  26L 

BONA  FIDE  HOLDER, 

of  negotiable  instruments,  pledgee  as,  135-141. 

BONDS, 

negotiable  bonds  held  in  pledge  may  be  sold  on  default,  166b 

BOOMING  COMPANIES, 

are  not  common  carriers,  314. 

BRIDGE  COMPANIES, 

are  not  common  carriers,  314. 

BURDEN  OF  PROOF, 
as  to  negligence,  30. 
as  to  showing  compensation,  45. 
warehousemen,  presumption  of  negligence,  240-242. 
in  action  against  common  carriers,  354. 
as  to  loss  in  case  of  connecting  carriers,  476. 
as  to  negligence  of  carriers  of  passengers,  517. 


CAB  DRIVERS, 

as  common  carriers,  310. 

CANAL  COMPANIES, 

as  common  carriers,  310,  314. 

CAPTORS, 

are  quasi  bailees  for  hire,  182. 

CARE, 

see  "Negligence." 

CARRIERS  OF  GOODS, 
private  carriers,  301. 

carriers  without  hire,  802. 


S32  INDEX. 

[The  figures  refer  to  pages.] 

CAJEtBTERS  OF  GOODS— Continued, 
private  carriers  for  Mre,  302, 
liability  for  negligence,  302. 
theft  or  robbery,  303. 
Uai,  303. 
eommon  carriers,  30i-i88. 

common  carriers  defined,  304. 
essential  characteristics,  301. 

public  habitual  employment,  304. 

contra  cases,  307. 
action  for  refusal  to  carry,  307. 
carriage  must  be  tor  hire,  308. 
who  have  been  held  common  carriers,  310. 
when  liability  attaches,  314. 

delivery  for  immediate  transportation,  SLi. 
delivery  to  agent,  316. 
place  of  delivery,  318. 
acceptance  by  common  carrier,  318. 
contract,  custom,  and  usage,  319. 
the  duty  to  carry  for  all,  321. 

limited  by  extent  of  profession,  321. 
nature  of  goods  carried,  322,  323. 
means  and  route,  324. 
limited  by  extent  of  facilities,  324. 

railroad  companies  mu»rt  provide  sufficient  facilities,  321. 
limited  by  condition  of  goods,  325. 
dependent  on  payment  of  charges  in  advance,  326. 
duty  to  furnish  equal  facilities  to  all,  327. 

the  express  cases,  328. 
right  to  compensation,  331. 
rate,  hovs^  fixed,  331. 
amount,  how  calculated,  333. 
who  liable,  consignor  or  consignee,  333* 
demurrage,  334. 
lien  for  charges,  342. 
on  what  goods,  343. 

on  goods  received  from  wrongdoer,  344. 
for  what  charges,  346. 
waiver  of  lien,  347. 
assignment  of  lien,  349. 
discharge  and  set-ofif,  349. 
sale  under  Hen,  350. 
compensation  when  goods  are  stopped  short  of  destination,  406. 


INDEX.  t>3ii 

[The  figures  ref^r  to  pages.] 

CARRIERS  OF  GOODS— Continued. 

liability  for  loss  or  dama^^e  as  insurers,  351-40L 
reason  of  rule,  353. 
burden  of  proof,  354. 
retention  of  custody  by  shipper.  355, 
exceptions  from  liability,  356-3G9. 
act  of  God,  856-sJ64. 

inevitable  accident,  857. 
proximate  and  exclusive  cause,  358. 
negligence  of  caiTier,  359. 
deviation  from  usual  course,  359-361. 
unreasonable  delay,  361. 
Illustrations  of  acts  of  God,  362. 
cases  not  within  the  act  of  God.  363. 
public  enemy,  364,  365. 

negligence  In  connection  with  act  of  public  enemy,  365. 
act  of  the  shipper,  365. 
public  authority,  367,  368. 
inherent  nature  of  goods,  368,  369. 
carriers  of  live  stock  are  common  carriers.  870-377. 
liability  as  insurers,  370-377. 

Inherent  vice,  disease,  or  condition  of  animals,  375-877. 
liability  as  insurers  of  baggage,  877^01. 

right  of  passengers  to  cany  baggage,  rf77. 
what  is  baggage,  378^381. 
articles  held  to  be  baggage,  381,  382. 
articles  held  not  to  be  baggage,  383,  384. 
effect  of  custom  and  usage  as  to  what  is  baggage,  884. 
liability  for  merchandise  shipped  as  baggage,  384. 
passenger  must  be  owner  of  baggage,  389,  390. 
passenger  need  not  accompany  baggage,  390,  391. 
compensation  for  baggage  unaccompanied  by  passenger,  890,  891. 
baggage  in  custody  of  passenger,  392-100. 
sleeping-car  companies,  liability  for  baggage,  400,  401. 
liability  as  ordinary  bailees,  401-107. 

shipper's  right  to  stop  transportation  short  of  destination,  406  (note 
464). 
liability  for  delay,  408-412. 

what  is  a  reasonable  time,  408. 
excuses  for  delay,  409-411. 

delay  does  not  discharge  contract  of  carriage,  411, 
delivery  within  stipulated  time,  411. 
special  property  of  carrier,  right  of  action.  412,  418. 


634  INDEX 

[The  figures  refer  to  pages.] 

CARRIERS  OF  GOODS— Continued, 
special  contract,  413. 

contracts  limiting  liability,  413. 
right  to  limit  liability,  414-421. 
Illinois  rule,  421. 
limiting  amount  of  liability,  425. 
contracts  limiting  time  and  manner  of  presenting  claims,  429- 

431. 
consideration,  431. 
construction,  433. 
lex  loci  and  lex  fori,  434,  485. 

when  contract  Inures  to  benefit  of  connecting  lines,  435,  486. 
bills  of  lading  as  contracts  and  receipts,  436. 
notices  limiting  liability,  437^47. 

notices  requiring  assent  by  shipper,  437-444. 

what  constitutes  assent,  mode  of  giving  notice,  440. 
notices  In  bills  of  lading,  440. 
notices  In  express  receipts  limiting  liability,  442. 
tickets,  baggage  checlis,  receipts,  etc.,  443,  444. 
notices  effectual  without  assent,  445-447. 

notices  of  reasonable  regulations,  etc.,  445-447, 
termination  of  liability  as  common  carrier,  447. 
delivery  to  consignee,  448. 
personal  delivery  to  consignee,  448. 

notice  to  consignor,  when  consignee  cannot  be  found,  necessity,  450. 
delivery  of  C.  O.  D.  goods,  451, 
notice  of  arrival,  carriers  by  water,  452. 

notices  of  anival,  railroad  companies.  New  Hampshire  rule,  456. 
arrival  at  depot,  Massachusetts  rule,  459. 
baggage,  4C2. 
delivery  to  connecting  carrier,  4n3— i76. 

when  delivei-y  to  connecting  cai'rier  is  complete,  464. 
who  are  connecting  carriers,  4G4. 

connecting  carrier's  liability  for  through  transportation,  467-477. 
liability  for  through  transportation,  the  English  rule,  468. 
authority  of  agents  to  maie  through  contracts,  470.. 
Implied  contract,  471. 
partnership  liability,  473—475. 
presumption  and  burden  of  proof,  476. 
excuse  for  nondelivery,  477—182. 

delivery  to  wrong  person,  477—479. 
rival  claimants,  479. 
stoppage  In  transitu,  480-482. 


INDEX.  636 

[The  figures  refer  to  pages.] 

CARRIERS  OF  GOODS— Continued, 
excepted  perils,  482. 
post-office  department,  4SJ-1S8. 
actions  against,  542-559. 
parties  plaintiff,  542. 

action  by  person  contracting  with  carrier,  643. 

consignee  presumed  to  have  contracted  with  carrier,  546. 
presumption  where  consignee  has  no  interest  in  goods,  54S. 
action  by  owner,  548. 

action  for  delay  in  delivery  and  refusal  *o  receive,  549. 
parties  defendant,  actions  for  loss,  injury,  or  delay,  550. 
action  for  refusal  to  receive,  551. 
connecting  carriers,  551. 
form  of  action,  551-554. 

when  action  may  be  ex  contractu  or  ex  delicto.  551. 
action  for  refusal  to  receive  must  be  ex  delicto,  551. 
pleadings,  554. 
evidence,  555. 
measure  of  damages,  556-559. 

damages  for  refusal  to  receive,  556. 
damages  for  total  loss  or  nondelivery,  557. 
damages  for  Injury  to  goods,  557. 
damages  for  delay,  558. 
consequential  damages,   559. 

CARRIERS  OP  PASSENGERS, 

see  "Baggage";  "Carriers  of  Goods." 
public  and  private  carriers,  489. 
who  have  been  held  public  carriers,  491. 
who  are  passengers,  493. 

passengers  on  freiglit  trains,  etc.,  491. 
express  messengers  arc  passengers,  494. 
railway  postal  clerk  is  passenger,  494. 
trespassers  and  the  like,  495. 
employes  as  passengers,  496. 
person  riding  on  another's  pass,  496. 
gratuitous  passengers,  497. 
when  liability  attaches,  499. 
rights  and  liabilities,  502-532. 

duty  to  accept  passengers,  502. 
who  may  be  refused,  502. 
using  vehicle  for  traffic,  503. 
Insufficient  accommodations,  504. 


636  INDEX. 

[The  figures  reier  to  pageaj 

CARRIERS  OF  PASSENGERS— Continued, 

right  to  prepayment  of  fare,  504. 

waiver  of  right  to  refuse,  505 
duty  to  furnish  equal  accommodations,  505. 

discrimination  against  colored  passengers,  505. 

classification  of  passengers,  506. 
right  to  compensation,  507. 

right  to  require  purchase  of  ticket,  507. 

higher  fare  when  paid  on  train,  508. 
ticket  as  evidence  of  passenger's  rights,  510. 

right  to  stop  over,  513. 
right  to  make  regulations,  514. 
liability  for  delay,  516. 

conforming  to  published  time-table,  516. 

delay  In  transportation,  516. 
injuries  to  passengers,  517. 

degree  of  care  due  passengers,  517. 

reason  of  rule,  public  policy,  518. 

presumption  of  negligence  from  proof  of  damage,  517. 
how  rebutted,  517.  526. 

care  in  transit,  519. 

care  as  to  means  of  transportation,  519,  520. 

liability  for  hidden  defects,  520. 

liability  for  negligence  of  manufacturer,  521. 

wrongful  acts  of  agents  or  sei-vants,  523. 

wrongful  acts  of  fellow  passengers  or  others,  524. 

stational  facilities,  liability  for  negligence,  525. 

duty  to  persons  not  passengers,  528. 
contracts  limiting  liability,  529-531. 
termination  of  liability,  532. 
ejection  from  vehicle,  533. 

for  what  cause,  533. 

re-entry  after  ejection,  534. 

place  of  ejection,  535. 

circumstances  of  ejection,  force  used,  resistance,  538. 
alighting  at  station,  537. 

duty  to  assist  passengers  to  alight,  538. 

duty  to  wake  sleeping  passengers,  539. 
connecting  carriers,  539. 
actions  against,  560-567. 
the  parties,  560. 
form  of  action,  501. 
pleading  and  evidence,  562. 


INDEX.  637 

[The  figures  refer  to  pages.] 

CARRIERS  OF  PASSENGERS— Continued, 
measure  of  damages,  5G2. 

Hobbs  V.  Railway  Co.,  563. 

exemplary  damages  and  mental  suffering,  564. 

failure  to  carry  passenger,  delay,  5G4. 

failure  to  carry  to  destination,  wrongful  ejection,  568. 

C.  O.  D., 

delivery  of  goods  by  carrier,  451. 

CHATTEL  MORTGAGE, 

distinguished  from  pledge,  106. 

CIVIL   RIGHTS, 

discrimination  against  colored  passengers  by  carrier,  505. 

COLLATERAL  SECURITY, 
pledge,  106. 

COLLISION, 

not  an  act  of  God,  364. 

COMMERCIAL  PAPER, 

pledge  of,  sale  on  default,  165. 

COMMODATUM, 

see  "Bailments  for  Bailee's  Sole  Benefit," 
defined,  36,  81. 

distinguished  from  mutuum,  82. 
must  be  created  by  contract,  83. 

consideration,  84. 
must  be  for  exclusive  use  of  bailee,  84. 
must  be  without  intended  compensation  to  bailor,  84. 
general  requisites,  85,  86. 
rights  and  liabilities  of  parties,  86. 

ordinary  and  extraordinary  expenses,  87. 

fraud  in  procuring  lien,  liability  of  bailee,  88. 

liability  of  lender  for  defects,  88. 

right  of  action  against  third  persons,  89. 

right  of  borrower  to  use  property,  89. 

borrower  must  exercise  more  than  ordinary  care,  9Z 
termination  of  loan,   Q.'i-lOO. 

precarium,  96. 

redelivery  of  property  with  increments.  98-100. 

COMMON   CARRIERS, 

see  "Carriers  of  Goods";   "Carriers  of  Passengers." 


638  INDEX, 

[The  figures  refer  to  pages.] 

COMPENSATION, 

absence  of,  in  bailments  for  bailor's  sole  benefit,  44. 

burden  of  proof  and  presumptions  as  to,  45 

necessity  of,  in  bailments  for  hire,  179. 

bailments  for  hired  use,  210. 

of  bailee  for  hired  service,  216-221. 

service  left  incomplete,  21G-220. 

service  not  in  accord  with  mutual  Intent,  220. 

service  fully  performed,  221. 
essential  to  make  one  common  carrier,  308. 

common  carrier,  duty  to  accept  dependent  on  prepayment  of  charges,  826. 
right  of  common  carriers  to,  331. 

rate,  how  fixed,  331. 

amount,  how  calculated,  332. 

who  liable,  consignor  or  consignee,  333. 

lien,  discharge,  and  set-oflf,  349. 

assignment  of  lien,  349. 

sale  under  lien,  350. 

for  baggage  unaccompanied  by  passenger,  390,  391. 

when  goods  are  stopped  short  of  destination,  406  (note  464). 
carriers  of  passengers,  right  to,  507. 

right  to  prepayment  of  fare,  504. 
CONDITIONAL  SALE, 

distinguished  from  bailments,  9  (note  20). 
CONFLICT  OF   LAWS. 

constiTJCtion  of  contracts  limiting  carrier's  liability,  434,  435. 
CONFUSION   OF   GOODS, 
rights  of  parties,  244. 

of  grain  by  warehousemen,  sale  or  bailment,  245. 
CONNECTING  CARRIERS, 
who  are,  464. 
delivery  to.  463^76. 
when  delivery  is  complete,  464. 
liability  for  through  transportation,  the  prevailing  rule,  466-477. 

the  English  rule.  468. 

authority  of  agents  to  make  through  contracts,  470. 

implied  contract,  471,  472. 

partnership  liability,  473— i75. 

presumption  and  burden  of  proof,  476. 
carriers  of  passengers,  539. 
CONNECTING  LINES, 

when  contract  limiting  liability  inures  to  benefit  of,  435,  43S. 


INDEX.  6j9 

[The  figures  refer  to  pages.] 


CONSENT, 

termiuatlon  of  bailment  by,  73. 

lien  for  services  dependent  on  consent  of  owner,  225. 

of  Innkeeper  to  receive  guest,  essential  to  relation,  274, 

CONSIDERATION, 

for  bailments  for  bailor's  sole  benefit,  15. 

for  contracts  limiting  common  can-ier's  liability,  431. 

CONSTRUCTION, 

of  contracts  limiting  common  carrier's  liability,  433. 
conflict  of  laws,  434. 

CONSTRUCTIVE  BAILEES, 
who  are,  14,  15. 

CONTRACT, 

whether  bailment  is  founded  on,  13. 

liability  of  bailee  under  special  contract,  27. 

right  to  contract  against  liability  for  acts  of  agents,  28. 

bailee  liable  for  breach,  29. 

gratuitous  bailee  may  bind  bailor  by,  52. 

bailments  for  hire,  created  by,  181. 

for  hiring,  effect  of  Illegality,  181,  182. 

special  contract  in  bailments  for  hire,  185. 

limiting  innkeeper's  liability,  289,  290. 

effect  on  acceptance  by  common  carrier,  319. 

limiting  liability  of  common  carriers,  413. 

New  York  rule,  421. 
limiting  liability  of  carriers  of  passengers,  529. 

CONVERSION, 

converter  liable  as  bailee,  13, 

by  infant  bailee,  17. 

liability  of  bailee  for,  29. 

by  bailee  terminates  bailment,  75. 

right  of  borrower  to  maintain  trover,  90  (note  35). 

by  pledgee,  159. 

measure  of  damages,  160.  161. 

terminates  pledge,  176. 
liability  for  conversion,  bailments  for  hire,  187-198. 

by  hired  bailee,  189-196. 

what  constitutes,  189-196. 

deviation  by  bailee  for  hire  constitutes,  191-196. 

unintentional  deviation  does  not  constitute,  19L. 


640  INDEX. 

[The  Azures  refer  to  pages.] 

CORPORATIONS, 

as  parties  to  bailments,  20. 

authority  of  banlis  to  receive  special  deposits,  48, 
power  to  hold  stock  in  pledge,  110  (note  45). 
pledge  of  corporate  stock,  126. 

title  of  pledgee,  143. 

pledgee's  right  to  vote,  153. 

liability  for  assessments,  154. 

CUSTOM  AND  USAGE, 

as  affecting  acceptance  by  common  carrier,  319. 

effect  on  question  of  what  is  baggage,  384. 

liability  of  bailee  for  goods  kept  in  accordance  with,  68. 

effect  on  liability  for  expenses  of  bailment,  201. 

innkeeper's  liability  limited  by,  290. 


D 

DAMAGES, 

sustained  In  executing  bailment  by  gratuitous  bailee,  53. 

measure  of,  for  conversion  by  pledgee,  160. 

in  trover,  for  conversion,  188. 

In  case,  for  misfeasance,  188. 

in  actions  of  trespass,  188. 

In  actions  against  carriers  of  goods,  556-559. 

for  refusal  to  receive  goods,  556. 

for  total  loss  or  nondelivery,  557. 

for  Injury  to  goods,  557. 

for  delay,  558. 

consequential  damages,  559. 
In  actions  against  earners  of  passengers,  562-567. 

exemplary  damages  and  mental  suffering,  564. 

personal  injury  to  passenger,  564. 

failure  to  carry  passenger,  delay,  564. 

wrongful  ejection,  565-567. 

DEATH, 

termination  of  bailment  by,  76. 

DELAY, 

in  connection  with  act  of  God,  liability  of  carrier,  861. 
liability  of  carrier  for,  408-412. 

unavoidable  delay  does  not  discharge  contract  oi  Cdrrlage,  411. 

excuses  for,  409-411. 
carriers  of  passengers,  liability  for,  516. 

damages  for,  558. 


INDEX.  641 

[The  ligures  refer  to  pagea.] 

DELIVERY, 

see  "Redelivery." 
may  be  made  to  servant  or  ageut,  12. 
essential  to  all  bailments,  12. 
actual  and  constructive.  12. 
of  property  in  pledge,  121-128. 

actual  delivery,  121. 

constructive  delivery,  122. 

agreement  to  deliver,  124. 

Incoi-poreal  property,  124. 

of  corporate  stock,  12G. 

of  warehouse  receipts,  127. 
necessity  of,  in  bailments  for  hire,  183. 
to  common  carrier  for  immediate  ti-ansportatlon,  necessity,  314. 

place,  318. 

necessity  of,  to  attach  liability  as  common  carrier.  355. 

of  baggage  to  carrier,  necessity,  and  what  constitutes,  396-898. 
by  carrier  must  be  made  in  a  reasonable  time,  408-412. 

what  is  reasonable  time,  408. 

excuses  for  delay,  409^11. 

within  stipulated  time,  411. 

to  consignee,  448-463. 

of  goods  a  O.  D.,  451. 

to  connecting  canier,  463^77. 

to  wrong  person,  477. 

excuses  for  nondelivery,  477—182. 

by  common  carrier  waives  lien,  347. 

DEMAND, 

when  necessary  to  terminate  bailment  for  bailor's  sole  benefit,  75. 
necessity  to  tei-minate  loan,  97. 

DEMURRAGE, 

right  to,  by  common  carriers,  334. 

DEPOSIT, 

distinguished  from  mutuum,  9  (note  20). 

DEPOSITARIES, 

quasi  depositaries  for  hire,  182,  183. 

DEPOSITUM, 
defined,  35,  38. 

bailment  for  sole  benefit  of  bailee,  38. 
depositor  and  depositary,  39. 
deposit  distinguished  from   mandate.  41. 

LAW  BAILM. — 41 


642  INDEX. 

[The  figures  refer  to  pages.] 

DEPOSITUM— Continued, 

bailments  by  operation  of  law  are  deposits,  43. 
absence  of  intended  compensation,  44. 
Involuntary  deposits,  44. 
liability  of  bailee  for  negligence,  61-73. 

liability  of  depositary  for  negligence,  61  (note  103). 

special  agreement,  67. 

knowledge  of  bailee's  character  and  manner  of  keeping  goods,  67. 

bailments  demanding  skill,  68. 
quasi  depositaries  for  hire,  182,  183. 
DEVIATION, 

renders  bailee  for  hire  an  insurer,  191-196. 
from  contract,  effect  on  right  to  compensation,  220,  221. 
from  usual  course  by  carrier,  liability,  359-361. 
DISCRIMINATION, 

by  innkeeper,  as  to  persons  entering  inn,  276. 
by  common  carriers,  827-330. 

the  express  cases,  328-330. 

in  charges  by,  835. 
by  carrier  of  passengers,  505. 

E 

EARTHQUAKE, 

Is  act  of  God,  362. 
EJECTION, 

of  passenger  from  vehicle,  533-537. 
for  what  cause,  533. 

re-entry  after  ejection,  534. 

place  of,  535. 

circumstances  of,  force  used,  resistance,  536, 

damages  for  wrongful  ejection,  565-567. 
EQUITY, 

sale  of  pledged  property  In  equity,  168. 
ESTOPPEL, 

of  bailee  to  dispute  bailor's  title,  22. 

bailee  may  recover  property  from  bailor,  when,  23* 

of  warehousemen  by  receipts,  243. 
EVIDENCE, 

In  actions  against  carriers  of  goods,  555. 

In  actions  against  carriers  of  passengers,  562. 
EXECUTION, 

sale  of  pledgor's  interest  on,  130. 


INDEX.  643 

[The  figures  refer  to  pages.] 

EXECUTORS   AND  ADMINISTRATORS, 

bailment  by,  redelivery  after  authority  has  terminated,  82. 

EXPENSES, 

of  executing  bailment,   who  liable   for  in   bailments  for  sole  benefit   of 
bailor,  51. 
In  bailments  for  hired  use,  200. 
In  bailments  for  hired  service,  222. 

EXPLOSION, 

not  an  act  of  God,  364. 

EXPRESS  COMPANIES, 
are  common  carriers,  310. 

EXPRESS  RECEIPTS, 

effect  of  notices  limiting  liability,  442. 


F 

FACTORS, 

rights  and  liabilities,  251,  252. 
power  to  pledge,  114-116. 

FERRIES, 

see  "Carriers  of  Goods";   "Carriers  of  Passengers.* 
are  public  carriers  of  passengers,  401. 

FINDER, 

title  of  lost  goods,  58  (note  93). 

liabilities  of,  13  (note  33). 

has  title  sufBcient  to  sustain  bailment.  20. 

lien  for  reward,  52. 

lien  for  expenses  and  reward,  39  (note  8). 

of  goods  liable  as  bailee,  16. 

of  lost  goods  a  depositary,  39. 

FIRES, 

liability  of  warehousemen  for,  239. 
liability  of  innkeeper  for  loss  by,  280, 
not  an  act  of  God,  863. 

FLOOD, 

is  act  of  God,  362. 

FORECLOSURE, 

of  pledgor's  right  to  redeem,  132. 

FORWARDING  MERCHANTS, 
rights  and  liabilities,  246. 


644  INDEX. 

[The  figures  refer  lo  pages.) 

FRAUD, 

bailee  cannot  contract  against,  28. 

in  procuring  loan,  liability  of  borrower,  8S, 

FREEZING, 

is  act  of  God,  363. 

FREIGHT  TRAINS, 

passengers  on,  liability  of  company,  491. 

G 

GARNISHMENT, 

of  pledgor's  interest  at  common  law,  130. 

GRATUITOUS  BAIKMENTS, 

see  "Bailments  for  Bailee's  Sole  Benefit";    "Bailments  for  Bailor's  Sole 
Benefit." 

GUARDIAN, 

bailment  by,  redelivery  to  successor,  32. 

GUESTS, 

of  innkeepers,  who  are,  265. 
special  agreement,  271-273. 
leaving  horse  at  inn,  270. 
consent  of  innkeeper,  269. 
the  entertainment  received,  268. 
commencement  of  relation,  273. 
duty  of  innkeeper  to  receive,  274-277. 
termination  of  relation,  297. 
loss  by  fault  of,  or  servant  or  companion,  liability  of  Innkeeper,  282. 


H 


HEAT, 

not  an  act  of  Gofl,  364. 

HIRING, 

see  "Carriers  of  Goods." 
bailment  for  compensation,  45. 
bailment  for  hiring  defined,  177. 
conductio  defined,  178. 
compensation,  necessity  of,  179. 
hirer  and  letter  defined,  179. 
establishment  of  relation,  179. 

by  contract,  181. 

by  operation  of  law,  182. 


INDEX.  646 

[The  figures  r*.'fer  to  pagea) 

HIRING— Continued, 

general  requisites,  183. 
locatio  rei,  or  hire  of  things  for  use,  184. 
hirer's  right  to  use,  186. 
liability  for  misuser,  18(). 

misuser  makes  bailee  an  insurer,  reason  of  rule,  188,  189. 

what  constitutes  conversion,  189-196. 

misuser  not  always  conversion,  190. 

bailor's  right  to  resume  possession,  190. 
right  of  action  against  third  persons,  196. 
special  property  of  bailee,  196. 
when  bailee  has  assignable  Interest,  197. 
bailor  must  warn  bailee  of  defects,  199. 
warranty  of  title  and  right  of  possession,  199. 
Incidental  and  extraordinary  expenses,  200. 
liability  to  third  persons  for  negligence,  200. 
liability  to  bailor  for  negligence,  201. 

what  constitutes  ordiuaiy  negligence,  201,  202. 

inevitable  accident,  or  vis  major,  203. 

liability  of  joint  bailees,  204. 

liability  for  acts  of  servants,  guests,  etc.,  204-209. 
redelivery,  209. 
compensation,  210. 
locatio  operis,  or  hire  of  labor  and  services,  212-25'c. 
locatio  custodise,  213. 
locatio  operis  faciendi,  213. 
locatio  operis  mercium  vehendarum,  213. 
special  contract,  213. 

special  property  of  bailee  for  hired  service,  214. 
compensation,  216. 

service  left  incomplete,  216. 

service  not  in  accord  with  mutual  intent,  220. 

service  fully  performed,  221. 
expenses  of  executing  bailment,  222. 
lien  for  compensation,  222-234. 

agistors  and  livery  stable  keepers,  222,  224. 

consent  of  owner,  225. 

of  subcontractors  or  servants,  226. 

priority  of  lien,  227-230. 

scope  of  lien,  230. 

general  lien,  231. 

waiver  of  lien,  231. 

enforcement  of  Hen,  233. 


646  INDEX, 

[The  figures  refer  to  pages.] 

HIRING— Continued, 

liability  for  negligence,  235-238. 

title  to  materials  used  in  repairs,  accession,  235w 
termination  of  relation,  252. 

redelivery,  253. 
warehousemen,  238-245. 

liability  for  negligence,  238-240. 

presumption  of  negligence,  burden  of  proof,  240-243, 

duty  to  redeliver  thing  bailed,  242. 

when  liability  begins  and  ends,  243,  244. 

confusion  of  goods,  244,  245. 
forwarding  merchants,  246,  247. 
wharfingers,  247,  248. 
safe-deposit  companies,  248,  250. 
agistors,  250. 

factors  and  other  bailiffs,  251,  252. 
liability  of  innkeeper  for  goods  held  under  lien,  299. 
private  carriers  for  hire,  802, 

HOTEL, 

see  "Innkeepers." 

HOYMEN, 

are  common  carriers,  811. 

I 

ILLEGALITY, 

in  contract  of  hiring,  effect,  181,  182. 
INEVITABLE    ACCIDENT, 

liability  of  bailee  for,  187,  203. 

INFANTS, 

competency  as  party  to  bailment,  16, 

liable  for  tort,  17. 

liable  in  trover  for  deviation  with  hired  horse,  191  (note  61). 
INNKEEPERS, 

defined,  254. 

may  furnish  lodging  only,  259. 

restaurants  and  eating  houses  not  Inns,  259l 

occasional  entertainment,  260. 

lodging  and  boarding  houses,  261. 

sleeping-car  and  steamship  companies,  262. 

holding  out  as  Innkeeper,  264. 

necessity  for  license,  264,  265. 

who  are  guests,  265. 

travelers  or  wayfarers,  267. 


INDEX.  6-17 

[The  figures  refer  to  pagea] 

INNKEEPERS— Continued, 

who  are  transients,  267. 
the  entertainment  received,  268. 
consent  to  receive  guest,  269. 
griest  leaving  horse  at  inn,  270. 
special  agreement,  271-273. 
commencement  of  relation  of  Innkeeper  and  guest,  278. 
rights  and  liabilities,  274. 

duty  to  receive  guests,  274-277. 

right  to  discriminate  between  persons  entering  Inn,  278. 

duty  to  receive  horses  of  guests,  277. 

liability  for  guests'  goods,  277. 

liability  for  accidental  fires,  280. 
loss  by  act  of  God,  281. 
loss  by  inherent  nature,  281. 
loss  by  public  enemy,  281. 
loss  by  robbery,  281. 

loss  by  fault  of  guest  or  his  servant  or  companion,  282. 
loss  by  theft,  282. 
for  what  property  liable,  284-289. 
goods  of  guests  only,  284. 
more  than  is  necessary  for  traveling,  285. 
goods  ari'iving  with  guest,  286. 
goods  for  show  or  sale,  287. 
goods  received  within  the  inn,  287. 
when  liability  attaches,  287. 
goods  in  exclusive  possession  of  guest,  289. 
limited  liability,  289. 

liability  limited  by  contract,  289. 
liability  limited  by  custom,  290. 
liability  limited  by  statute,  290-293. 
losses  above  a  certain  amount,  290. 
posting  notices,  291-293. 
lien,  293. 

on  what  goods,  293. 
goods  not  owned  by  guost,  291. 
for  what  charges,  295. 
waiver  of  lieu,  295,  298. 
enforcement,  296. 
termination  of  reLition  of  guest,  297. 
liability  after  relation  of  guest  ceases,  298. 
as  ordinary  bailee  for  hire,  299. 
as  gratuitous  bailee,  300. 


648  INDEX. 

[The  figures  refer  to  pages.] 

INSANITY, 

persons  non  compos  as  parties  to  bailment,  16. 
of  eitlier  party  revokes  mandate,  77. 

INSURANCE, 

insurable  interest  of  bailee  for  hired  service,  215. 
carrier  has  insurable  interest  in  goods  carried,  412. 
liability  of  common  carrier  as  insurer,  351-401. 

INTERPLEADER, 

right  of  bailee  to  interplead  rival  claimants,  33. 

INTERSTATE    COMMERCE    ACT, 
right  to  discriminate,  341, 

INVOLUNTARY  DEPOSITS, 
rights  and  liabilities,  44- 

J 

JOINT  BAILEES, 

liability  for  loss  or  injury,  204. 

JUDICIAL  SALE, 

of  pledgor's  interest,  130. 

JUS  TERTII, 

right  of  bailee  to  set  up,  35. 

L 

LIABILITIES, 

see  "Rights  and  Liabilities." 

LICENSE, 

of  innkeeper,  want  of  no  defense,  264. 
LIEN, 

of  finder  for  expenses,  39  (note  8). 
o£  finder  for  reward,  39  (note  8),  52. 
gratuitous  bailee  for  expenses,  52. 
distinguished  from  pledge,  104,  106. 
of  bailee  for  hired  service,  222-234. 

dependent  on  consent  of  owner,  225. 

subcontractors  or  servants,  226. 

priority  of,  227-230. 

scope  of,  230. 

for  services  is  particular,  230. 

general  and  special  liens,  231, 

waiver  of,  232. 

enforcement  of,  233. 


INDEX.  649 

[The  flgriu'es  refer  to  pages.] 

LIEN— Continued, 
of  vvhartiuger,  248. 

on  horse  left  at  stable  of  Inn,  271  (note  55). 
of  iunkeepers,  293. 

goods  not  owned  by  guest,  294. 

for  what  charges,  295. 

waiver,  295,  296. 

enforcement,  296. 
Innkeeper  liable  as  ordinary  bailee  for  goods  held  under,  299. 
of  private  carrier,  303. 
of  common  earners  for  charges,  342. 

on  what  goods,  343. 

goods  not  owned  by  shipper,  344. 

for  what  charges,  346. 

waiver,  347. 

discharge  and  set-off,  349. 

assignment,  349. 

sale  under,  350. 

LIGHTNING, 

Is  act  of  God,  362. 

LIMITATIONS  OF  ACTIONS, 

statute  runs  from  demand  and  refusal  to  return  propeity  loaned  for  an 

Indefinite  time,  97. 
running  of  statute  against  pledgor's  right  to  redeiim,  132. 

LJVERY  STABLE  KEEPERS, 

liability  for  injuries  to  bailees,  200. 
lien  of,  222,  224. 

LIVE   STOCK, 

see  "Carriers  of  Goods." 
carriers  of,  are  common  carriers,  314,  370-377. 
inherent  vice,  disease,  or  condition  of  animals,  liability  of  carrier,  875-377. 

LOAN, 

see  "Bailments  for  Bailee's  Sole  Benefit";  "Commodatum.** 
distinguished  from  gifts  and  sales,  82  (note  1). 
for  use,  82,  83. 
precarium,  96. 

LOCATIO. 

see  "Hiring." 
defined,  36,  177. 

bailment  for  compensation  Is,  45. 
locatio  rel,  184-211. 


660  INDEX, 

(The  figures  refer  *o  pages.] 

LOCATI O— Continued, 
locatlo  custodise,  213. 
locatio  operis  faciendl,  213. 
locatio  operis  merclum  vehendarum,  213. 

LOCATIO  OPERIS  MERCIUM  VEHENDARUM. 
see  "Carriers." 

LODGING  HOUSE  KEEPERS, 
not  innkeepers,  261. 

LOG    DRIVING    COMPANIES, 
are  not  common  carriers,  31-L 

M 

MAIL  CONTRACTORS, 

are  not  common  carriers,  313. 

MANDATUM, 

defined,  35,  38,  40. 

mandate  distinguished  from  deposit,  41. 

Roman  mandate  not  always  a  bailment,  40  (note  14). 

not  always  gratuitous,  41  (note  14). 

absence  of  intended  compensation,  44. 

liability  of  bailee  for  negligence,  61-78. 

liability  of  mandatary  for  negligence,  61  (note  103). 

special  agreement,  67. 

knowledge  of  bailee's  character  and  manner  of  keeping  goods,  6T. 

bailments  demanding  skill,  68. 

MARRIAGE, 

of  female  bailee  terminates  bailment,  77. 

MARRIED  WOMEN, 

competency  as  parties  to  bailment,  16. 
liable  for  tort,  17. 

MASTER, 

of  vessel,  liability  as  common  carrier,  550. 

MASTER  AND  SERVANT, 

see  "Servant." 

MISFEASANCE, 

liability  of  bailee  for  bailor's  sole  benefit,  54 
what  constitutes,  57. 

MISTAKE, 

In  contract  of  hiring,  effect,  181. 

delivery  to  wrong  person  by,  warehousemen,  243. 


INDEX.  651 

[The  figures  refer  to  pageaj 


MISUSER, 

liability  in  bailments  for  hire,  180. 
not  always  conversion,  100. 

MORTGAGES, 

chattel  mortgage  distinguished  from  pledge,  108. 

MUTUUM, 

defined,  8,  86. 

at  civil  law,  a  bailment,  8. 

at  common  law,  a  sale,  8. 

distinguished  from  commodatum.  82. 


N 
NATIONAL  BANKS, 

power  to  receive  special  deposits,  49. 
taking  own  stock  in  pledge,  119, 

NEGLIGENCE, 

bailee  must  exercise  due  care  under  the  circumstances,  28. 
of  bailor  In  exposing  bailee  to  danger,  23. 
defined,  24. 
degrees  of,  24. 

gross  negligence  defined,  25,  26. 
gross  negligence  not  equivalent  to  fraud.  26. 
liability  varied  by  special  contract,  27. 
presumed  from  loss  or  damage,  30. 
res  ipsa  loquitur,  31. 
in  making  redelivery,  32. 
gross  negligence  constitutes  misfeasance,  57. 
liability  of  gratuitous  bailee,  61. 
what  is  gross  negligence  in  gratuitous  bailee,  62,  63. 

special  agreement,  knowledge  of  bailee's  character  and  manner  of  keep- 
ing goods,  67. 
bailments  demanding  skill,  68. 
goods  kept  in  accordance  with  custom,  68. 
liability  for  sealed  packages,  69. 
omission  of  skill  may  be  gross  negligence,  69. 
Illustrations  of  gross  negligence,  70. 
case  illustrating  effect  of  local  custom,  71. 
case  illustrating  effect  of  a  second  bailment,  72. 
Illustrative  cases  of  special  bank  deposits,  72. 
of  lender  in  lending  defective  article,  88. 
bon-ower  liable  for  slight  negligence,  92-95. 


G52  INDEX. 

[The  figures  refer  to  pages.] 

NEGLIGENCE— Continued, 

gross  negligence  of  borrower,  illustrations,  92  (note  39). 

liability  of  pledgee  for,  155-158. 

liability  of  hired  bailor  for,  199. 

hiring,  liability  to  third  persons  for,  200. 

liability  of  bailee  in  bailments  for  hired  use,  201. 

liability  in  bailments  for  hired  services,  235-238. 

liability  of  warehousemen,  238. 

burden  of  proof,  240,  242. 
of  guest,  as  defense  to  Innkeeper,  283. 
of  private  carrier,  liability,  302. 
liability  of  common  cai-rier  for,  353. 

of  carrier  in  connection  with  act  of  God,  3^9. 

of  carrier  in  connection  with  act  of  public  enemy,  365. 

In  carriage  of  live  stock,  370-377. 

liability  of  common  carriers  as  ordinary  bailees  for,  401^07. 
of  carriers  of  passengers,  degree  of  care  required,  517. 

presumption  of,  517. 
how  rebutted,  526. 

contracts  limiting  liability  for,  529. 

NEGOTIABLE    INSTRUMENTS, 
title  acquired  by  pledgee,  135-141. 
sale  of  pledged  bonds  on  default,  166. 

NEGROES, 

discrimination  against  colored  passengers  by  carrier,  505. 

NONFEASANCE, 

liability  of  bailee  for  bailor's  sole  benefit,  54. 
liability  for  In  bailments  for  hire,  183. 

NOTICE, 

when  necessary  to  terminate  bailment  by  gratuitous  bailee,  75. 
by  pledgee  of  sale  on  default,  16G. 

limiting  innkeeper's  liability  In  accordance  with  statute,  291. 
that  articles  are  not  baggage,  what  is,  385-388. 

effect,  385  (note  400). 
limiting  liability  of  common  earner,  437-447. 

In  bills  of  lading,  effect,  440-442. 

In  express  receipts,  442,  443. 

in  tickets,  baggage  checks,  receipts,  etc.,  effect,  443,  444. 
of  reasonable  regulations  by  common  carriers,  445-447. 
to  consignor,  when  consignee  cannot  be  found.  460t 
of  arrival,  carriers  by  water,  452. 


INDEX.  658 

[The  figures  refer  to  pages.] 


NOTICE^-Contlnued, 

railroad  companies,  45G-458. 
of  arrival  of  baggage  not  necessary,  462. 


o 

OFFICERS  OF  COURTS, 

are  quasi  bailees  for  hire,  182. 
seizing  goods  under  process  bailees.  16. 

OMNIBUSES, 

are  common  carriers,  310. 

are  public  carriers  of  passengers,  491-, 

ORDINARY  NEGLIGENCE, 
defined,  26. 

OWNERSHIP, 

general  ownership  remains  In  bailor,  5. 


P 

PAROL  EVIDENCE, 

to  vary  bill  of  lading,  admissibility.  437. 

PARTIES, 

to  bailments,  competency,  16. 

bailments  by  operation  of  law,  capacity.  18,  48. 

agents,  18. 

corporations,  20. 
In  actions  against  carriers  of  goods.  542-551. 
In  actions  against  carriei-s  of  passengers,  560. 

PASSENGERS, 

see  "Carriers  of  Passengers." 

PASSES, 

liability  of  carrier  to  gratuitous  passengers,  407. 

PAWN, 

see  "Pledge." 

PAYMENT, 

of  pledge  debt  terminates  pledge,  173. 
pledge,  application  of  payments,  173. 
subrogation  of  sureties  of  pledgor,  174. 

PERFORMANCE, 

terminates  bailment,  73. 

of  engagement  terminates  pledge,  173. 


654  INDEX. 

[The  figures  refer  to  pages.] 

PIQNUS. 

see  "Pledge." 
defined,  86. 
PIRATES, 

regarded  as  public  enemy,  364. 
PLEADING, 

in  actions  against  carriers,  554,  562. 
PLEDGE, 

in  general,  101,  102. 

defined,  102, 

statutory  definitions,  105. 

collateral  security,  106. 

distinguished  from  lien,  104,  106. 

distinguished  from  chattel  mortgage,  106. 

distinguished  from  sale,  108. 

establishment  of  relation,  109. 

must  be  established  by  contract,  109. 

legality,  110. 

parties,  110. 

debt  or  engagement  secured.  111. 

pledgor  need  not  be  absolute  owner,  113. 

right  of  pledgee  where  pledgor  has  limited  interest,  113,  114. 

title  of  pledgor,  113-118. 

by  factors,  114,  115. 

statutory  power  to  pledge,  115,  116. 

indicia  of  title,  116. 

right  of  pledgee  of  stolen  property,  117,  118. 

pay  of  soldiers,  118. 

pensions  given  by  the  United  States,  118. 

of  future  property,  11,  119. 

of  incorporeal  property,  119. 

actual  delivery,  121. 

constructive  delivery,  122. 

agreement  to  deliver,  124. 

delivery  of  incorporeal  property,  124. 

priorities  between  pledgees  of  incorporeal  property,  125. 

delivery  of  corporate  stock,  126. 

delivery  of  bill  of  lading,  127. 

delivery  of  warehouse  receipts,  127. 
rights  and  liabilities  of  pledgor,  128-133. 

rights  varied  by  special  contract,  128. 

pledgor  warrants  his  title,  128. 


INDEX.  G55 

[The  figures  refer  to  pages.] 

PLEDGE— Contlnned, 

pledgor's  interest  Is  assignable,  129. 
pledgor's  Interest  subject  to  judicial  sale  by  statute.  130. 
pledgor  may  sue  third  persons  for  injuries  to  pledge,  131. 
pledgee  cannot  contract  for  irredeemable  pledge,  133. 
rights  and  liabilities  of  pledgee  before  default,  133-1G2. 
pledgee's  interest  assignable,  134. 
title  acquired  by  pledgee,  135. 

pledgee  as  bona  fide  holder  of  negotiable  Instruments,  135-141. 

negotiable  Instruments,  135-141. 

nonnegotiable  instruments,  142. 

certificates  of  stock,  143. 

bills  of  lading,  146. 

wax'ehouse  receipts,  148. 
pledgee's  right  to  use,  151. 
right  to  profits,  152. 

of  corporate  stock,  pledgee's  right  to  vote.  153. 
liability  for  expenses,  154. 

assessment  on  stock,  154. 
care  required  of  pledgee,  liability  for  negligence,  155-158. 

negligence  in  collection  of  negotiable  paper,  156. 
redelivery  on  redemption,  158. 
conversion  by  pledgee,  159. 
sale,  sui-plus  held  in  trust  for  pledgor,  162. 
rights  and  liabilities  of  pledgee  after  default,  162-170, 
suit  on  debt,  163. 

sale  of  pledge  at  common  law,  164. 

sale  of  pledge  in  which  pledgor  had  limited  interest,  164. 
of  commercial  paper,  sale  on  default,  165. 
pledgee  cannot  purchase  at  sale  on  default,  168. 
sale  in  equity,  168. 
sale  under  power  in  contract,  169. 

sale  of  more  than  sufficient  v/heie  pledge  is  divisible,  169  (note  339). 
sale  under  statutes,  170. 
termination  of,  170-177. 

redelivery  to  pledgor,  171. 

by  payment  or  performance,  173. 

application  of  payments,  173. 

subrogation  of  sureties  of  pledgor.  174. 
termination  by  tender,  175. 

at  pledgor's  option  by  conversion  by  pledgee,  170. 
by  sale  by  pledgee,  176. 
may  redeem  until  foreclosed,  132. 


656  INDEX, 

[The  figures  refer  to  pages.1 

POSSESSION, 

waiTanty  of  right  of  by  bailor  for  hire,  199. 

POSTMASTERS, 

are  not  common  carriers,  313. 

POST-OFFICE  DEPARTMENT, 

liability  for  loss  of  mails,  483-488. 

liability  as  carrier,  484. 

liability  of  postmasters,  485-488. 

liability  of  contractors  for  can-ying  the  malls,  488. 

PRECARIUM, 

what  is,  96. 

PRESUMPTIONS, 

as  to  intended  compensation,  45. 
of  negligence,  warehousemen,  240. 
in  actions  against  common  carriers,  354. 
as  to  loss  in  case  of  connecting  carriers,  476. 
of  negligence  from  proof  of  damage  to  passenger,  517. 
how  rebutted,  526. 

PRIORITIES, 

between  pledgees  of  incorporeal  property,  125. 
of  lien,  227-230. 

PUBLIC  ENEMY, 
defined,  364. 

liability  of  innkeeper  for  loss  by,  281. 
carrier's  liability  for  losses  by,  364,  365. 


QUASI  BAILEES, 
who  are,  14,  15. 
for  hire,  who  are,  182,  183. 


Q 


B 


RAILROAD  COMPANIES, 

see  "Carriers  of  Goods";  "Carriers  of  Passengers,' 
are  common  carriers,  311. 
duty  to  provide  sufficient  facilities,  324. 
are  public  carriers  of  passengers,  491. 

RAILWAY  AND  CANAL  TRAFFIC  ACT, 
in  England,  340. 


INDEX.  667 

[The  figures  refer  io  pagea] 

REALTY, 

cannot  be  bailed,  11. 

REOEIPTOKS, 

are  depositaries,  39. 
REOEIPTS, 

effect  of  notices  limiting  liability,  448,  444. 
RECEIVERS, 

are  quasi  bailees  for  hire,  182  (note  25). 

of  railroads  are  common  carriers,  312. 

REDELIVERY, 

of  identical  property,  necessity  of,  6. 

to  wrong  person,  liability,  29  (note  120). 

obligation  to  make,  30. 

negligence  in  making,  32. 

to  whom  made,  32,  79. 

to  wrong  person,  liability,  32, 

property  to  be  delivered,  78. 

place  where  deliveiy  should  be  made  by  gratuitous  bailee,  80. 

of  pi'operty  loaned,  98-100. 

of  pledge,  158. 

conversion  by  pledgee,  159. 

by  bailee  for  hired  use,  209. 

by  warehousemen,  242. 

at  termination  of  hiring,  253. 

REDEMPTION, 

right  of  pledgor  to  redeem,  132. 

REPLEVIN, 
by  bailor,  21. 
bailor  for  term  cannot  maintain,  197. 

RESTAURANTS, 

keepers  not  innkeepers,  259. 

REVENUE  OFFICERS, 

are  quasi  bailees  for  hire,  182. 

RIGHTS  AND   LIABILITIES, 

bailments  for  sole  benefit  of  bailor,  50. 
liability  for  expenses,  51. 

power  of  bailee  to  bind  bailor  by  contract.  52. 
damages  sustained  in  execution  of  bailment.  58* 
liability  for  misfeasance  and  nonfeasance,  54. 
bailee's  right  to  use  property  bailed,  57. 

LAW  BAILM.— 42 


658  INDEX. 

[The  figiu'es  refer  to  pages.] 

RIGHTS  AND  LIABILITIES— Continued, 

interest  of  bailor  and  bailee,  general  or  special  property,  58. 
bailee  must  exercise  slight  care,  61. 
commodatum,  ordinary  and  extraordinary  expenses,  87. 
fraud  in  procuring  loan,  88. 
liability  of  lender  for  defects,  88. 
right  to  use  property,  89. 
right  of  action  against  third  persons,  90. 
borrower  must  exercise  extraordinai-y  diligence,  92. 
of  pledgor,  128-133. 

pledgor  warrants  his  title,  128. 
pledgor's  interest  is  assignable,  129. 
pledgor's  interest  subject  to  judicial  sale,  130. 
pledgor's  right  of  action  against  third  persons,  131. 
pledgor's  right  to  redeem,  132. 
of  pledgee  before  default,  133-162. 

pledgee's  interest  is  assignable,  134. 
pledgee  acquires  title  of  pledgor,  135. 
when  pledgee  takes  free  from  equities,  135. 
pledgee  acquires  special  property,  150. 
pledgee's  right  to  use  pledge,  151. 
pledgee  must  account  for  profits  of  pledge,  152. 
expenses  incurred  about  pledge,  154. 
pledgee  must  use  ordinai-y  care  and  diligence,  155. 
on  redemption,  pledgee  must  redehver  property  pledged,  158. 
of  pledgee  after  default,  162. 

sale  of  pledge  at  common  law,  164. 
pledgee  may  sell  pledged  property,  164-170. 
pledgee  may  sue  on  debt  without  losing  lien,  164-170. 
Bale  of  pledge  in  equity,  168. 
sale  under  power,  169. 
sale  under  statute,  170. 
hiring,  special  contract,  184. 

locatio  rei,  or  hii-e  of  things  for  use,  184-211. 

right  to  use,  186. 

special  property,  right  of  action  against  third  persons,  19Q. 

bailee's  assignable  interest,  197. 

bailor  must  warn  bailee  of  defects,  199. 

warranty  of  title  and  right  of  possession,  199. 

incidental  and  extraordinary  expenses,  200. 

liability  to  third  persons  for  negligence,  200. 

liability  to  bailor  for  negligence,  201. 

liability  for  injurious  acts  of  servants,  etc.,  204. 


INDEX.  659 

[The  figures  refer  to  pages.] 


RIGHTS  AND  LIABILITIES— Continued, 

redeliveiy,  209. 

compensation,  210. 
locatio  operls,  or  hire  of  labor  and  services,  212-25S. 
.  bailee's  special  property,  215. 

right  of  action,  215. 

compensation,  216. 

expenses,  222.  ' 

lien,  222. 

title  to  materials  used  In  repairing,  235. 

liability  for  negligence,  235. 

innkeepers,  254. 

warehousemen,  238-245. 

termination  of  relation,  252. 

redelivery,  253. 
of  Innkeepers,  274. 

duty  to  receive  guests,  274. 
liability  for  guests'  goods,  277. 
lien  on  guests'  goods,  293. 
as  ordinary  baUee,  299. 
of  common  carrier,  307-482. 

when  liability  as  common  carrier  attaches,  314. 

the  obligation  of  carrying  for  all,  321. 

the  duty  of  furnishing  equal  facilities  to  all.  327. 

the  right  to  compensation,  331. 

liability  for  loss  or  damage  as  insurers,  351. 

liability  for  loss  or  damage  as  ordinary  bailees,  401. 

liability  for  delay,  408. 

special  property  of  can-iers,  right  of  action,  412. 

special  contract,  413. 

liability  of  carriers  of  live  stock,  370-377. 

liability  of  carriers  of  baggage,  377. 

carrier's  liability  for  delay,  408-412. 

contracts  limiting  liability  of  common  carrier.  413i. 

termination  of  liability  as  common  carrier,  447. 

delivery  to  consignee,  448. 

delivery  to  connecting  carrier,  463. 

excuses  for  nondelivery,  477. 
of  carriers  of  passengers,  502-531. 

RIVAL  CLAIMANTS, 
duty  of  bailee,  33. 
right  of  bailee  to  Interplead,  33. 


660  INDEX. 

[The  figures  refer  to  prisres.] 

ROBBERY, 

Is  equivalent  to  accident  by  superior  force,  203. 
liability  of  innkeeper  for  loss  by,  281. 
liability  of  private  carrier,  303. 


S 


SAFE-DEPOSIT  COMPANIES, 
nature  of,  248-250. 


SALE, 

distinguished  from  bailment,  6. 

mutuum,  8. 

bailment  with  option  to  purchase,  9. 

change  of  form,  7  (note  17). 

wheat  stored  in  elevator,  bailment  or  sale,  7  (note  17). 

distinguished  from  pledge,  108. 

of  pledge  at  common  law,  164. 

of  pledge  in  which  pledgor  had  limited  interest,  164, 

on  default,  notice,  166. 

pledgee  cannot  purchase,  168. 
of  pledged  property  in  equity,  168. 
of  pledged  property  under  power  in  contract,  169. 
of  pledged  property  terminates  pledge,  176. 
under  lien,  234. 

confusion  of  goods  by  warehousemen,  245. 
common  carriers,  under  lien,  350. 

SALVAGE, 

salvors  are  quasi  bailees  for  hire,  43,  183^ 

SAVINGS  BANK  BOOK, 
pledge  of,  125. 

SEALED  PACKAGES, 

liability  for,  69. 

SERVANT, 

not  a  bailee,  13  (note  32). 

liability  of  bailee  for  ax;ts  of,  204-209. 

lien  of,  226. 

SET-OFF, 

pledgee  may  set  off  pledged  debt  when  sued  for  conversion,  159  (note  291). 

SLEEPING-CAR  COMPANIES, 
not  innkeepers,  262. 
are  not  common  carriers,  312. 
liability  for  baggage,  400,  401. 


INDEX.  661 

[The  Ugures  refer  to  pageaj 


SNOWSTORM, 

is  act  of  God,  363. 

SPECIAL  DEPOSIT, 
In  banks,  39,  47. 

Illustrative  cases,  72. 

STAGE  COACHES, 

are  common  carriers,  310. 

axe  public  carriers  of  passengers,  491. 

STEAMBOATS  AND  SHIPS, 
are  common  carriers,  311. 
are  public  carriers  of  passengers,  49L 
not  innkeepers,  262. 

STOCK, 

pledg-e  of  corporate  stock,  126. 
title  of  pledgee  of,  143. 
pledgee's  right  to  vote,  153. 
pledge,  liability  for  assessments,  154. 

STOPPAGE  IN  TRANSITU. 

as  excuse  for  nondelivery,  480-482. 

STREET-CAR   COMPANIES, 

are  public  carriers  of  passengers.  491. 

STRIKERS, 

not  regarded  as  public  enemy,  364. 

SUBROGATION, 

of  sureties  of  pledgor,  174. 

SURETIES, 

of  pledgor,  subrogation,  174. 

T 

TEMPEST, 

is  act  of  God,  362. 

TENDER, 

of  pledge  debt  terminates  pledge,  17EL 

TERMINATION, 

of  bailment  for  bailor's  sole  benefit,  73. 

of  loan,  95-100. 

of  plf^flpp.  how  terminated,  170. 

of  hiring,  252. 

of  relation  of  innkeeper  and  guest,  297. 


662  INDEX. 

[The  figures  refer  to  pages.] 

TERMINATION— Continued, 

of  liability  as  common  carrier,  447-482. 
of  passenger  carrier's  liability,  532. 

THIEVES, 

liability  of  warehousemen  for  loss  by  theft,  240. 
liability  of  innkeeper  for  loss  by  theft,  2811. 
liability  of  private  carrier  for  loss  by  theft,  303. 
might  make  bailment  at  civil  law,  21. 
liability  as  bailees,  13  (note  34). 
not  regarded  as  public  enemy,  3G4. 

TICKET, 

as  evidence  of  passenger's  rights,  510. 

carrier's  right  to  require  purchase  of  ticket  before  enterinjf  cars,  507. 

erfect  of  notices  in,  443,  444, 

TITLE, 

acquired  by  pledgee,  185. 

negotiable  instruments,  135. 

of  nonnegotiable  instruments,  142. 
of  bailor,  bailee  estopped  to  dispute,  22. 
of  bailor  in  bailments  for  his  sole  benefit,  47. 
of  bailor  sufficient  to  sustain  bailment,  20. 
of  pledgee  of  corporate  stock,  143. 
to  materials  used  in  repairs,  accession,  235. 
warranty  of,  by  bailor  for  hire,  199. 
warranty  of,  by  pledgor,  128. 

TRANSIENT, 

see  "Innkeepers." 
tvho  are,  267. 

TRANSPORTATION  COMPANIES, 
are  common  carriers,  810. 

TRAVELERS, 
who  are,  267. 

TRESPASS, 

by  bailor,  21  (note). 

TROVER, 

bailor  for  hire  cannot  maintain  during  term,  197. 

TURNPIKE  COMPANIES, 
are  not  common  carriers,  314. 


INDEX.  663 

[The  flgrures  refer  to  pages.] 


V 

VIS   MAJOR, 

liability  of  bailee  for  damage  by,  203. 


W 

WAIVER, 

of  objections  to  deviation  from  contract  of  birlng,  221. 

of  lien,  232. 

of  lien  by  common  carrier,  347. 

of  rigbt  to  refuse  passenger,  505. 

WAREHOUSEMEN, 

liability  for  negligence,  238-240. 

presumption  of  negligence,  burden  of  proof,  240-243, 
duty  to  redeliver  thing  bailed,  242. 
when  liability  begins  and  ends,  243,  244. 
confusion  of  goods,  244,  245. 

when  liability  as  common  carrier  ceases  and  that  of  warehouseman  bo- 
gins,  447^59. 

WAREHOUSE  RECEIPTS, 
delivery  in  pledge,  127. 
title  of  pledgee,  148. 

WARRANTY, 

of  title  by  pledgor,  128. 
title  by  bailor  for  hire,  199. 

WAYFARERS, 
who  are,  267. 

WHARFINGERS, 

general  lien  of,  231  (note  231). 
rights  and  liabilities,  247,  248. 

WHEAT, 

delivery  to  miller  In  return  for  flour,  7  (note  17). 
storage  In  elevators,  sale  or  bailment,  7  (note  17). 

WIND, 

Is  act  of  God,  362. 


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1S09.     034  pages.     ?3.75  d^^livered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


CG3.jC>-1 


Black  on  Construction  anb 
3ntcrprctat!on  of  iaivs, 

1911.     624  pages.    $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  «nd  Treatises  on  (Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE    OF    CONTENTS. 

Cbap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Conse(iuences  of  Act. 

5.  Literal  and  Granunatical  Construction,  Meaning  of  Language, 

and  Interpretation  of  Words  and  Plirases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutorj-  Con.stniction. 

8.  Construction  of  Statute  as  a  Whole  and  witli  Kcference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Libenil  Construction. 

1.3.  Mandatory  and  Director^'  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

15.  Construction  of  Codies  and  Revised  Statutes. 
Id.  Adopted  and  Re-enacted  Statutes. 

17.  Declaratory  Statutes. 

18.  Tlie  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 


C6559a-2 


Black's  Constitutional  £aii\ 

1910.     SG8  pages.     $3.75  delivered. 


By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary.  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 


Third  Edition. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  EstablLshment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Governmeut. 

6.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 
10.  The  Establishment  of  Republican  Governmeut. 

n.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legishitive  Power  in  the  States. 

14.  The  I'oiice  Power. 

15.  The  Power  of  Taxation. 

10.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal   Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 


CG559a-3 


CI?tlb5  on  Smvhjsbip  anb 
(Biiarantii, 

1907.     572  i)agcs.     .'i;;].7.-,  drlivcnMl. 
By  FRANK  HALL  CHILDS, 

of    the    Cbic:i;j;o    P.:ir. 


TABLE    OF    CONTENTS. 


Chap. 


1.  Definitions,  Parties,  Distinctions,  and  aassifications. 

2.  Formation  of  tlio  Contract. 

3.  The  Statnte  of  Frauds. 

4.  Construction  of  tlie  Contract. 

5.  Ki.^'hts  and  Liabilities  as  Between  the  Creditor  and  the  Sure- 

ty. 

G.  Rights  and  Liabilities  of  the  Surety  and  of  the  Principal  as  to 
each  other. 

7.  Rights  and  Liabilities  of  Co-Sureties  as  to  each  other. 

8.  Parties  to  Negotiable  Instruujent.s  Occni)yiug  the  Relation  of 

Sureties. 

9.  Official   Bonds. 

10.  .Tudiiial   Bonds. 

11.  Bail  Bonds  and  Recognizances. 


Ctjrj.")!)-4 


Clark  on 

Contracts. 

1904.     693  pages 

.     $3.7o  delivered. 

By  WM.  L. 

CLARK,  Jr. 

Second  Edition :    By  FRANCIS  B.  TIFFANY. 

TABLE    OF 

CONTENTS. 

Chap 

1. 

Contract  in  General. 

2 

Offer  and  Acceptance. 

3. 

Classification  of  Contracts, 

4. 

Requirement  of  Writing. 

5. 

Consideration. 

6. 

Capacity  of  Parties. 

7. 

Reality  of  Consent. 

8. 

Legal itj'  of  Object. 

9. 

Operation  of  Contract. 

10. 

Interpretation  of  Contract. 

11. 

Discbarge  of  Contract. 

12. 

Agency. 

13. 

Quasi  Contract. 

CGr..jO-o 


(£Iarli  on  (Eorporations. 

1907.     721  rajrt's.     $;3.7r,  dclivon-d. 

By  WM.  L.  CLARK,  Jr., 
Author  of  "Criminal  La^y"  '•Criminal  Procfclure."  and  "Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE    OF    CONTENTS. 
Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incoriioration. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Lial)ilities  of  Corporations. 
G.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corjwrations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  CoriJorations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


CG.j.j'J-G 


dark's  Criminal  £aip. 

1002.     517  pages.     $3.75  delivered. 

By  V/M.  L.  CLARK,  Jr., 

Author  of  a  "Haudbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TA-LE   OF   CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 
G.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 


13. 

Offenses  against  Public  Justice  and  Authority. 

14. 

Offenses  against  the  Public  Peace. 

15. 

Offenses  against  the  Government. 

IG. 

Offenses  against  the  Law  of  Nations. 

17. 

.Jurisdiction. 

IS. 

Former  Jeopardy. 

CG55L>-7 


(£Iarh 5  (£riniinal  Procobmw 

ISD.x     CC")  i»a-i's.     <;:;.7."  (Iclivcrml. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  '•Ilaiidlidok  of  Criiiiiiml   Law,"  and  a  "Ilainlliool;  of 

Coutracts." 


TABLE    Or    CONTENTS. 

Chap. 

1.  Jurisfliftion. 

2.  Appreboui^ion  of  Persons   aiicl   Property. 

3.  Preliminary  Examination,  P>ail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading — The  Accusation. 
G.  Pleading — The  Accusation. 

7.  Pleading — The  Accu.-ation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial   and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

15.  Ilaheas  Corpus. 


CGou'J-S 


—i 


(£ro5iPcU  on  (Sxecutors  anb 
dbmintstrators. 

1897.     G96  pages.     $3.7."  delivered. 

By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"'  etc. 


TABLE    OF    CONTENTS. 

Chap. 

Part  1.— DEFIXITTOXS  AND  DIVISION  OF  SUBJECT. 

1.  Defiuitious  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

o.  E'lace  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualitications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations — Set-off. 

25.  Evidence  and  Costs. 


CG559-0 


Costioian  on  IVlinincs  iaiv. 

190S.     TO.")   i):igcs.     $:!.7.~>  dt'livorcd. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Uiw  of  the  University  of  Xehraska. 


TABLE    OF    CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posse.s- 

sions  of  the  United  States. 

3.  The  Land  Department  and  the  rnblic  Surveys. 

4.  The  Relation   Between    Mineral   Lands  and   the  rubiie   Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead.  Tiiiil  er 

and  Desert  Entries. 

G.  The  Relation  Between  Mineral  Lands  and  the  Various  Tublic 
Land  Reservations. 

7.  The  Relation  Between  :Miueral  Lands  and  Towusites. 

8.  Defiuitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  May  and  Who  May  not  Locate  iNIining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 
!(].  The  Annua!  Labor  or  Improvements  Reciuirements. 

17.  The  Abandonment,    Forfeiture,   and    Relocation   of   Lode   and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

10.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

2.J.  Mining  Partnerships  and  Tenancies  in  Common. 
2G.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


ClJ550-0ii 


(£aton  on  (Squtty. 

1001.     731  pages.     $.3.75  delivered. 

By  JAMES  W.  EATON, 

Editor    3d    Edition    Collier    on    Bankruptcy,    Co-Editor    American 

Bankruptcy  ReiJorts,  Eaton  and  Greene'.s  Negotiable 

Instruments  Law,  etc. 


TABLE    OF    CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

I'artition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


c<;.V)!)-io 


(Barbiior  on  IPilb. 

1!)0:>.     Tl'C.  p.iLri  s.     .S:!.7.".  il.livcr.-d. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Bostuu  Uiiivci'sitj-   Law  School. 


TABLE    OF    CONTENTS. 

Chap. 

.1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Kesulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

G.  Restraint  upon  Power  of  Testamentary  Disposition — Win)  may 
be  Beneticiaries — What  may  be  Disposed  of  by   Will. 

7.  Mistake,  Fraud,  and  Undue  Intluence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wilis. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlliug  I'riuciples. 

14.  Construction — Description  of  Subject-Matter, 
l.j.  Construction — Description  of  P>eneHciary. 

IC.  Construction — Nature  and  DuratiDU  of  Interests. 
17.  Construction — Vested  and   Contingent  Interests — Remainders 
— Executory  Devises. 

15.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  .Vdcmption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Delits. 
2:;.  Election. 

24.  Rights  of  Reneflf'iaries  Not  Previously  Discussed. 


CU.j.j9-12 


(Bilmore  on  Partncrst^tp. 

1911.     About  775  pages.     $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gihnore's  Cases  on  Partnership 
(American  Caseboolc  Series). 


TABLE    OF   CONTENTS. 

Chap. 

1.  What  Constitutes  a  Partnership. 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership. 

4.  Nature.  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners. 

G.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Ilemedies  of  Creditors. 

S.  Actions  Between  Partners. 

0.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership. 

11.  Limited  Partnerships. 


C<;.350a-13 


I^alc  on  Bailments  anb 
Carrier*. 

189().  (jT.-)  [)agc.s.     §;;;.7.j  (U-livcred. 
By  WM.  B.  HALE. 


TABLE    OF    CONTENTS. 
Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


(Siioo'J-lo 


J^ale  on  X)amage5. 

1S9G.     47G  pages.     $3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  "Bailrueuts  and  Carriers/ 


TABLE    OF   CONTENTS. 
Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Diimages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph   Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 


C6550-16 


^ale  on  (Torts. 

1S9G.     G3G  pages.     $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

0.  Wrongs  Affecting  Freedom  and  Safety  of  Persoa. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C(J55!>-17 


l5)op(uns  on  Jlcal  Property. 

lS9(j.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

•  1.  What  is  Real  Property. 

2.  Tenure  and  .Seisin. 

3.  Estates  as  to  Quantity — Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life   Estates. 
G.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less    than    Freehold. 

8.  E.states  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoj-ment — Future  Estates. 

12.  Estates  as  to  Number  of  Owner.s — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 
IG.  Title. 


CG550-1S 


1^U(3I^^5  on  Ctbiniraltij 

1001.     r>04  iKiiica.     <;;!.7.".  (U'livt  It'll. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF   CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  nn.l  its  Extent  In  the 
Unitetl  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sul>ject-.Mattt'r. 

General  Averaj:;e  and  Marine  Insurance. 

Bottomry  and  Kespoudentia  ;  and  Liens  for  Supplies,  IlLpairs,  aud 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carria.ge  as  Affected  l)y  the  Ilarter  Act  of  February  1."..  1S9.3. 

Auniiralty  Jurisdiction  in  Matters  of  Tort. 

Thp  Right  of  Action  in  Admiralty  for  In.iuries  Resulting  I'atally. 

Torts  to  the  Troperty.  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  .\<'t. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  I\Iariner"s  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Iiil.md  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  aiitl  Coast  Wa- 

ters. 

(4)  Tlie  Lake  Rules. 

(ij)  The  Mississii>pi  Valley  Rules. 

(ti)  The  Act  of  .March  :'>.  lS!t".>.  as  to  Obstructing  Cbauuels. 

3.  The  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3,  18r>l,  as  Amended. 

(2)  The  Act  of  June  2(j,  1S84. 

4.  Section  J>41,  Rev.  St.,  as  Amended.  Regulating  Ronding  ol   \  es- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 
G.   Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice'. 


C6559-11) 


^ug>l}cs  on  ^cbcval 
3iirt5btctton  anb  Proccbiire. 

1904.     G34  pages.     $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE    OF   CONTENTS. 


Chap. 


1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice, 

3.  Same — Continued. 

4.  The    District    Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court— Bankruptcy. 
G-S.  Same — Continued. 

9,  The  District  Court — Miscellaneous  Jurisdiction. 

10.  The  Circuit  Court — Original  Jurisdiction. 

11-12.  Same — Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 

14-lo.  Same — Continued. 

IG.  The  Circuit  Court— Jurisdiction  by  Removal — Original  Juris- 
diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— ^Courts  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction— 'The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction — The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


CG.J.j!j-20 


^ngcrsoll  on  Public 
(Eorporations. 

1904.     738  pages.    ^3.T.j  dt'livtTfd. 

By  HENRY  H.  INGERSOLL,  LL.  D.. 
Dean  of  the  Uuiversity  of  Tennessee  School  of  Law. 


TABLE    OF    CONTENTS. 

Part  1.— QUASI  COKPOR.VTIONS. 
Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — LiaBilities,  Elements,  Counties,  Property. 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal   Corporations. 

6.  Their  Creation— How— By  What  Bodies— Subject  to  What  Re- 

strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employe's. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Paries,  and  Public  Buildings. 

16.  Torts. 

17.  Debts.  Funds,  Expenses,  aud  .Vdmiuistrati(»n. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Compaulcs. 

24.  Other  Quasi  Public  Corporations. 


C0'5.J9-21 


3a<3garb  on  Sorts. 

1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE    OF   CONTENTS. 

Part  1.— IN  GENERAL. 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Eight  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG559-22 


21Tcl\cIiicy  on  ^Sinbciuw 

1907.     r.40  panes.     $;;.7ri  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Autlior  of  "Coniinoii-Law  rieadii);:,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof, 
o.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  E.xaminatlon  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

CG5r>l>-2ll 


Horton  on  'Bills  anh  Hotes. 

1900.     GOO  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.   NORTON. 
Third   Edition:    By   Francis   B.  Tiffany. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 
G.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 
S.  The  Purchaser  for  Value  without  Notice. 
9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 
Appendix. 


CC559-24 


Sl^tpman  on  Coiumou^iaip 
PIca^iltcs. 

1895.     Gl;j  pages.  '$3.1o  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  Tlie  Parties  to  Action*;. 

4.  The  Proceedings  in  an  Action. 

5.  Tlie  Declaration. 

G.  The  Production  of  the  I.ssue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


CGo.j9-2.j 


5t?tpman  on  Cqutty 
Plcabing. 

1897.     G44  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  "Shipman's  Common-Law   Pleading." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 
G.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


CGuoO-Di; 


Smttl/s  (Slcincntani  *\nr. 

189G.     3G7  pages.     $:;.7."  d.-llvfred. 

BY  WALTER  DENTON  SIVIITH. 
Instructor  in  the  Law  Di-partiuent  of  tlio  University  of  Michlgnn. 


TABLE    OF    CONTENTS. 
Chap. 

Part  1.— ELEMENTARY  JUUISniUDEN-CE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

(5.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 
0.  I'roperty. 

10.  Classificatiou  of  the  Law. 

Part  2.— THE  SUBSTAXTIVK   LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorj>oreal  Hereditaments. 

15.  Estates  in  Real  Property. 
10.  Title  to  Real  Property. 

17.  I'ersonal  I'roperty. 

18.  Succession  After  Death. 

19.  Conti'acts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


CG5:iJ-JT 


(Tiffany  on  CTgcncy. 

1903.     609  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  bj^  Wrougful  Act,"  "Law  of  Sales,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratiflcation. 

4.  What  Acts  Can  be   Done  by  Agent— Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract. 

9.  Same  {continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Pei-sou  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGEJN'T. 

1').  Duties  of  Agent  t©  Principal. 
1(».  Duties  of  Principal  to  Agent. 
ApiMjndix. 


: 

C0o.j9-28 


(Eiffany  on  Persons  anc* 
Dontcstfc  2\clation5. 

1909.     0.jG  pages.     $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition:  Edited  by  Roger  W.  Cooley. 


TABLE    OF    CONTENTS. 
Chap. 

Part  1.— IIUSBAXD  AND  WIFE. 

1.  Marriage. 

2.  I'ersoiis  of  tlio  Spouses  as  Affected  by  Coverture. 

3.  liiglits  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-«:'i>utractual  Oblipi- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  ;uid  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  nnd  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Cbildren. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Detined — Selection  and  Appointment. 

12.  Rights.  Duties,  and  Lialiilities  of  Guardians. 

13.  Termination  of  Guardianshi]) — Enforcing  <  Juardlan's  Liability. 

Part   4.— INFANTS,   PERSONS    NON    COMPOTES    .MENTIS. 
AND    ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part   .'5.— MASTER   AND    SKKVANT. 
IG.  Creation  and  Termination  of  Relation. 


C655ya-2.<J 


Ciffany  on  Sales. 

190S.     534  pages.     ?3.T5  delivered. 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF    CONTENTS. 


Chap. 


1.  Formation  of  the  Contract.  f 

I 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds.  | 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe-  1 

ciiflc  Goods.  ) 

\ 

t' 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specifle. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Eights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


C<>5r>»a-30 


Pancc  oil  3n5uraiK\\ 

ISUG.     (JSi!  paues.     is;>.7ri  dcliviTtMl. 

By  WILLIAM  REYNOLDS  VANCE. 
Professor  of  Law  iu  tlu;  (Joorgo  WasbiuKtou  University 


The  principal  object  of  this  treatise  is  to  give  n  consistent  Btnt' 
ment  of  logically  developed  priiulples  tliat  underlie  all  eontraets  of 
insurance,  witli  subsidiary  chai)ters  treating  of  tlie  niles  pe<-uliar 
to  the  several  different  kinds  of  insurance.    Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 

desired  clarilication  of  this  Ijrancli  of  the  law. 

The  chai)ters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
:\Ialcing  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Crcxlit.  and  Liability  Insurance. 
Appendix. 


CG559-31 


IPilson  on 
3nternattonaI  £atp. 

1910.     G23  pages.     $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  ludepeudence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

G.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agx-eements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  \Yar. 

13.  Persons  During  War. 

14.  Property  on  Land. 
l.j.  Property  on  Water. 
IG.  Maritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 
2.J.  Blockade. 

2G.  Continuous  Voyage. 

27.  Unneutral  Service. 

28.  Prize. 


Ct;.'..")9-32 


Law  libraky 


LOS  ANGELES 


AA    000  830  98/ 


